EU Law Blog

Caselaw on Free Movement of Goods

The EC Commission has published a magnificent compendium of the case law of the Court of Justice on the free movement of goods.

You can download it in pdf here.

Of course, it is very descriptive and contains little or no commentary but it is a very useful source of references.

Highly recommended.

Free Movement of Goods, Product Use and Jet-Skis: Case C-142/05

Remember that a while ago the Court of Justice held that in principle that national rules regulating the use of products are within the ambit of Article 28 EC but can be justified under Article 30. The Court made that clear in its judgment in Case C-110/05 Commission v. Italy which we noted up here.

Now the Court of Justice has handed down a second judgment in answer to a request for a preliminary ruling from a Swedish court that confirms and consolidates that position. In its recent judgment in Case C-142/05 Mickelsson and Roos the Court of Justice held that Swedish rules on the use of jet-skis on navigable waterways were caught by the prohibition of measures hindering the free movement of goods in Article 28 EC but could be justified under Article 30 EC.

There had been divergent opinions of Advocate generals on that point. In her opinion in this case Advocate General Kokott seemed to favor taking product use regulations outside the scope of Article 28 EC. Advocate General Poiares Maduro in his opinion in Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilopoulos and Carrefour-Marinopoulos was not in favor.

Sweden had a rule laying down that jet-skis could only be used on "general navigable waterways" and such other waterways as expressly permitted by local rules. As a matter of fact, no such local rules had been passed and consequently jet-skis could only be used on "general navigable waterways". But "general navigable waterways" are relatively few and very busy with commercial traffic. In practice, therefore, the actual use of jet-skis in Sweden are merely marginal.

The Court recalled its classic case-law according to which  measures taken by a member State, the aim or effect of which is to treat goods coming from other member States less favorably and, in the absence of harmonisation of national legislation, which create obstacles to the free movement of goods by applying, to goods coming from other member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods, even if those rules apply to all products alike, must be regarded as ‘measures having equivalent effect to quantitative restrictions on imports’ for the purposes of Article 28 EC (see to that effect, Case 120/78 Rewe-Zentral (Cassis de Dijon) [1979] ECR 649, paragraphs 6, 14 and 15; Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 8; and Case C-322/01 Deutscher Apothekerverband [2003] ECR I-14887, paragraph 67). Any other measure which hinders access of products originating in other member States to the market of a member State is also covered by that concept (Case C-110/05 Commission v. Italy [2009], paragraph 37).

Even if the national regulations at issue do not have the aim or effect of treating goods coming from other member States less favorably, which is for the national court to ascertain, the restriction which they impose on the use of a product in the territory of a member State may, depending on its scope, have a considerable influence on the behaviour of consumers, which may, in turn, affect the access of that product to the market of that member State. Consumers, knowing that the use permitted by such regulations is very limited, have only a limited interest in buying that product (Case C-110/05 Commission v. Italy, paragraphs 56 and 57).

The Court continued that the Swedish measures could be justified under Article 30 EC but that it was for the national court to assess the facts of the case and determine whether the measures in question in fact met the requirements for such a justification.

It recalled that in preliminary reference proceedings - based on a clear separation of functions between the national courts and the Court of Justice - any assessment of the facts in the case is a matter for the national court (Case C-450/06 Varec [2008] ECR I-581, paragraph 23). But to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (Case C-49/07 MOTOE [2008], paragraph 30).

The Court continued that in the main proceedings, the national regulations had been in force only for about three weeks at the material time. The fact that measures to implement those regulations had not been adopted at a time when those regulations had only just entered into force ought not necessarily to affect the proportionality of those regulations in so far as the competent authority may not have had the necessary time to prepare the measures in question, a matter which falls to be determined by the national court.

If the national court were to find that implementing measures were adopted within a reasonable time but after the material time of the events in the main proceedings and that those measures designate as navigable waters the waters in which the accused in the main proceedings used personal watercraft and consequently had proceedings brought against them, then, for the national regulations to remain proportionate and therefore justified in the light of the aim of protection of the environment, the accused would have to be allowed to rely on that designation; that is also dictated by the general principle of Community law of the retroactive application of the most favourable criminal law and the most lenient penalty (Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, paragraph 68).

Fixed Book Prices, Free Movement of Goods and Justification: Case C-531/07

Here's a standard, solid judgment on the free movement of goods and fixed book prices.

In its judgment in Case C-531/07 Fachverband der Buch- und Medienwirtschaft v. LIBRO Handelsgesellschaft mbH the Court of Justice held that a prohibition on importers of German-language books from fixing a price below the retail price fixed or recommended by the publisher in the State of publication constitutes a restriction on the free movement of goods which cannot be justified.

Austrian legislation contained provisions on the obligation to sell German-language books at a fixed price. In particular, the legislation provided that the publisher or importer is to fix and publish a retail price and the importer is not to fix a price below the retail price fixed or recommended by the publisher for the State of publication, less any value added tax comprised in it. Moreover, the legislation granted the Austrian Fachverband der Buch- und Medienwirtschaft (trade association of the chamber of commerce for the book and media trade) the power to publish the retail prices to which the booksellers are subject for the sale in Austria of German-language books.

That did not suit a big book retailer in Austria, LIBRO, which advertised books published in Germany for sale in Austria at prices below the minimum set for Austria on the basis of German prices.

The Fachverband sued LIBRO and sought an injunction from the competent Austrian court directing LIBRO to cease such advertising.

The Austrian court wondered whether the legislation was contrary to Article 28 EC and referred the matter to the Court of Justice.

The Court of Justice answered in the affirmative.

It recalled that all trading rules enacted by member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered to be measures having equivalent effect to quantitative restrictions for the purposes of Article 28 EC (Case 8/74 Dassonville, paragraph 5).

The Court went on to examine whether the Austrian legislation concerned a "selling arrangement". It held that the application to products from other member States of national provisions restricting or prohibiting certain selling arrangements is not such as to constitute such a hindrance, on condition that those provisions apply to all relevant traders operating within the national territory and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products (see Joined Cases C-267/91 and C-268/91 Keck and Mithouard, paragraphs 16 and 17, and Case C-110/05 Commission v Italy, paragraph 36, see here for our post on that important judgment).

But, the Court held, the Austrian legislation, by prohibiting Austrian importers of German-language books from fixing a retail price below that fixed or recommended by the publisher for the State of publication, less any VAT comprised in it, provides for a less favourable treatment for imported books since it prevents Austrian importers and foreign publishers from fixing minimum retail prices according to the conditions of the import market, whereas the Austrian publishers are free to fix themselves, for their goods, such minimum retail prices for the national market. Consequently, such provisions constitute a measure having equivalent effect to an import restriction contrary to Article 28 EC, because they create, for imported books, a distinct regulation which has the effect of treating products from other member States less favorably.

The Court also held that the Austrian legislation could not be justified under Article 30 EC. Although the protection of books as cultural objects can be considered an overriding requirement in the public interest, the particular measure was disproportionate as the importer or foreign publisher could not fix a retail price for the Austrian market taking into account the conditions of that particular market.

Free movement of Goods, Motorcycle Trailers, Product Use and Road Safety: Case C-110/05

Here's a judgment that's important not for what it decides but for what it does not decide. It is the judgment of the Court of Justice in Case C-110/05 Commission v. Italy and concerns the free movement of goods.

The Commission brought Article 226 proceedings against Italy because that state introduced legislation that prohibited motorcycles and quadricycles from towing a trailer. The Commission claimed that that prohibition was a restriction on the free movement of goods contrary to Article 28 EC.

All rather reminiscent of Felini's La Strada, really. But that's a digression.

The case is remarkable because the idea cropped up, as such ideas tend to do, that the rule adumbrated in Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard that rules on selling arrangements were in principle outside the scope of the prohibition contained in Article 28 EC should be extended to rules on the use of products.

There were divergent opinions of Advocate generals on that point. In her opinion in Case C-142/05 Mickelsson and Roos Advocate General Kokott seemed to favor taking product use regulations outside the scope of Article 28 EC. Advocate General Poiares Maduro in his opinion in Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilopoulos and Carrefour-Marinopoulos was not in favor.

Thus, the Court of Justice reopened the procedure in this case after Advocate General Léger had handed down his opinion that the Italian regulations on the use of trailers was indeed contrary to Article 28 EC and suggested to the Court to find in favor of the Commission. The Court asked all the member States to take a position on whether product use rules should be taken beyond the reach of Article 28 EC. Funnily enough, many member States thought that would be a good idea. Then, Advocate General Bot, who replaced Advocate General Léger who had retired from the Court, handed down a second opinion, also against taking product use regulations outside the scope of Article 28 EC.

The Court of Justice for its part held that regulations on the use of products were within the scope of the prohibition contained in Article 28 EC.

The Court of Justice recalled that according to settled case-law, all trading rules enacted by member States which are capable of hindering, directly or indirectly, actually or potentially, intra-EC trade are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 28 EC (see, in particular, Case 8/74 Dassonville, paragraph 5). It added that Article 28 EC reflects the obligation to respect the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other member States, as well as the principle of ensuring free access of Community products to national markets (see, to that effect, Case 174/82 Sandoz, paragraph 26; Case 120/78 Rewe‑Zentral (‘Cassis de Dijon’), paragraphs 6, 14 and 15; and Keck and Mithouard, paragraphs 16 and 17).

As a consequence, the Court held that obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect to quantitative restrictions even if those rules apply to all products alike (see, ‘Cassis de Dijon’, paragraphs 6, 14 and 15; Case C‑368/95 Familiapress, paragraph 8; and Case C‑322/01 Deutscher Apothekerverband, paragraph 67).

In this particular case, the Court held that the restriction on the use of motorcycle trailers was contrary to Article 28 EC because consumers, knowing that they are not permitted to use their motorcycle with a trailer specially designed for it, have practically no interest in buying such a trailer (see, by analogy, Case C‑265/06 Commission v Portugal, paragraph 33, concerning the affixing of tinted film to the windows of motor vehicles). But the restriction was justified on the grounds of - now get this - road safety. It thus dismissed the Commission's action.

Honestly, the idea that Italy does anything to promote road safety is bound to provoke laughter. What about enforcing the seat belt laws a bit ? Or informing motorists in Rome that those pretty red, yellow and green lights are not just decorative but seek to convey some driving instructions ?

UPDATE: The judgment in Case C-142/05 Mickelsson and Roos is now out and confirms this judgment. See our post here.

Internet Sales, DVDs, Censorship and the Free Movement of Goods: Case C-244/06

Here's a neat judgment of the Court of Justice on the free movement of goods. The case concerns the censorship and classification of videos and DVDs sold by mail order and over the internet. The judgment is a neat one because it is a sort of quick and thorough revision course on the case law on the free movement of goods !

All European countries engage in fairly strict censorship and classification of films, videos and DVDs, basically because freedom of expression is a largely unprotected right. German law requires that all videos and DVDs that may be sold to children and young people must be authorized and appropriately labelled by an officially recognized public authority or voluntary organization.

The judgment in Case C-244/06 Dynamic Medien Vertriebs GmbH v. Avides Media AG concerned the sale in German of Japanese "Anime" DVDs by a German company, Avides Media, over the internet. The DVDs offered for sale by Avides Media came from the United Kingdom (where the choice is greater) and had been vetted by the British censors but not by the German authorities. Dynamic Medien, a competitor of Avides Media, brought proceedings in the German courts to prevent Avides Media from offering for sale DVDs that had not been vetted and marked by the German authorities.

The German court asked the Court of Justice whether the principle of free movement of goods laid down in Article 28 EC precludes the German law prohibiting the sale by mail order of DVDs and videos that are not labelled as having been vetted by the German authorities as to their suitability for young people. The German court also asked whether the German prohibition could be justified under Article 30 EC.

The Court of Justice held, in the first place, that the German rules constitute a measure having equivalent effect to quantitative restrictions within the meaning of Article 28 EC, which in principle is incompatible with the obligations arising from that article unless it can be objectively justified.

The Court recalled that all trading rules enacted by member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 28 EC (see, inter alia, Case 8/74 Dassonville, paragraph 5, Case C-420/01 Commission v. Italy, paragraph 25, and Case C-143/06 Ludwigs-Apotheke, paragraph 26).

The German measures in question were not deigned to regulate trade between Germany and other member States. But the Court also recalled the important issue is the effect of those measures may have on intra-EC trade. By virtue of that factor, absent any harmonization of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect (such as those relating to designation, form, size, weight, composition, presentation, labelling or packaging), even if those rules apply to all products alike, unless their application can be justified by a public-interest objective taking precedence over the requirements of the free movement of goods (see, Case 120/78 Rewe-Zentral ('Cassis de Dijon'), paragraphs 6, 14 and 15; Case C-368/95 Familiapress, paragraph 8; and Case C-322/01 Deutscher Apothekerverband, paragraph 67). The Court has also treated as measures having equivalent effect, prohibited by Article 28 EC, national provisions making a product lawfully manufactured and marketed in another member State subject to additional controls, save in the case of exceptions provided for or allowed by Community law (see, Case C-390/99 Canal Satélite Digital, paragraphs 36 and 37, and Case C-14/02 ATRAL, paragraph 65).

It was debated before the Court whether the German rules on censorship were selling arrangements within the meaning laid down by the Court in its judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard, paragraph 16. The Court concluded in this case that the German rules on censorship do not constitute a selling arrangement within the meaning of Keck and Mithouard and the subsequent cases. It recalled that in paragraph 15 of its judgment in Case C-391/92 Commission v Greece that rules restricting the marketing of products to certain points of sale, and having the effect of limiting the commercial freedom of economic operators, without affecting the actual characteristics of the products referred to, constitute a selling arrangement. Therefore, the need to adapt the products in question to the rules in force in the member State in which they are marketed prevents the German requirements from being treated as selling arrangements (see Canal Satélite Digital, paragraph 30). That is the case, inter alia, with regard to the need to alter the labelling of imported products (see, Case C-33/97 Colim, paragraph 37, and Case C-416/00 Morellato, paragraphs 29 and 30).

The Court then considered whether the German measures could be justified as being necessary to protect young people, being an objective linked to public morality and public policy recognized as grounds for justification in Article 30 EC.

The Court held that the German measures were so justified.

It recalled that the protection of the rights of the child is recognized by various international instruments which the Member States have cooperated on or acceded to, such as the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations and entered into force on March 23rd 1976, and the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on November 20th 1989 and entered into force on 2nd September 1990. The Court has already pointed out that those international instruments are among those concerning the protection of human rights of which it takes account in applying the general principles of Community law (see, inter alia, Case C-540/03 Parliament v Council, paragraph 37). Under Article 17 of the Convention on the Rights of the Child, the States Parties recognize the important function performed by the mass media and are required to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. Article 17(e) provides that those States are to encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.

The Court pointed out that the protection of the child is also enshrined in the Charter of fundamental rights of the European Union, Article 24(1) of which provides that children have the right to such protection and care as is necessary for their well-being (see, Parliament v Council, paragraph 58).

Nevertheless, the Court recalled that the German system of the examination of the DVDs and videos must be proportionate in the sense that it must be readily accessible, can be completed within a reasonable period, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see, Case C-344/90 Commission v France, paragraph 9, and Case C-95/01 Greenham and Abel, paragraph 35). It concluded that while it seemed prima facie that the German system was proportionate, the national court must examine whether it is in fact proportionate.

Cosmetics, Free Movement and Harmonization Directive: Case C-257/06

The Court of Justice handed down a neat judgment in Case C-257/06 Roby Profumi SrL v. Comune di Parma dealing with the relationship between a directive that harmonizes the law completely and the free movement provisions of the EC Treaty.

That's sometimes an issue that is obscured in certain student text books but which is of great practical importance.

The judgment in Case C-257/06 concerned the obligation imposed by Italian law on the importer of cosmetic products to provide the requisite national authorities with certain information on the products and their manufacturers.

The referring national court asked whether such obligations were compatible with Article 28 EC as well as with Directive 76/768.

The Court recalled that Directive 76/768 provided exhaustively for the harmonization of national rules on the packaging and labeling of cosmetic products (see, inter alia, Case C-77/97 Unilever, paragraph 24; Case C-220/98 Estée Lauder, paragraph 23, and Case C-99/01 Linhart and Biffl, paragraph 17). Consequently, when the question referred concerns harmonization at the EC level, the national measures relating thereto must be assessed in the light of the provisions of that harmonizing measure and not those of the EC Treaty (see, Case C-150/88 Eau de Cologne & Parfümerie-Fabrik 4711, paragraph 28; Case C-37/92 Vanacker and Lesage, paragraph 9, and Case C-324/99 DaimlerChrysler, paragraph 32).

Oh, and by the way, the Court held that the Italian obligations were compatible with Directive 76/768.

Garlic, Food Supplements, Public Health and Free Movement of Goods: Case C-319/05

Garlic is good for you and vampires hate it.

That's why Germany classified garlic preparations in capsules as a medicinal product within the meaning of Directive 2001/83/EC on the Community code relating to medicinal products. The consequence of such a classification is that the product cannot be placed on the market without a marketing authorization which is granted after pharmacological tests have been carried out. And they probably can only be sold in pharmacies.

The Commission considered that the garlic preparations in question should not be classified as a "medicinal product" and that the consequence of that classification is to impose a burden on importers of the product in Germany amounting to a restriction on the free movement of goods contrary to Article 28 EC. Consequently, the Commission took Germany to Court.

And won. The Court of Justice held in Case C-319/05 Commission v. Germany that Germany had classified the product wrongly as a medicinal product thereby imposing a restriction on the free movement of goods prohibited by Article 28 EC.

The Court then turned to the question of whether the German measure was justified for reasons relating to the protection of public health in accordance with Article 30 EC. The Court held that there was no public health justification for such a measure.

The judgment examines how the public health exception works. It recalls that it is for the member States, in the absence of harmonization and to the extent that uncertainties continue to exist in the current state of scientific research, to decide on their intended level of protection of human health and life. The member States also decide on whether to require prior authorization for the marketing of foodstuffs but they must take into account the requirements of the free movement of goods within the EC (Case 174/82 Sandoz, paragraph 16, and Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilipoulos and Carrefour-Marinopoulos, paragraph 21). When they exercise their discretion in taking measures to protect public health, the member States must comply with the principle of proportionality: They must confine their measures to what is actually necessary to ensure the safeguarding of public health; they must be proportional to the objective thus pursued, which could not have been attained by measures which are less restrictive of intra-EC trade (see Sandoz, paragraph 18, Case C-192/01 Commission v. Denmark, paragraph 45; and Case C-24/00 Commission v. France, paragraph 52).

In this case the Court found that Germany, instead of making the garlic pills subject to such an authorization procedure, could have prescribed suitable labelling to warn consumers of the potential risks related to taking this product. The protection of public health would thus have been ensured without such serious restrictions on the free movement of goods (see, to that effect, Case C-17/93 van der Veldt, paragraph 19).

Wondering why take garlic capsules when you can chew on the real thing ? The capsules are better if you want intimate moments with someone you are not yet intimate with. So a trip to the pharmacy is recommended in any event.

Charges equivalent to a customs duty: Case C-173/05

This kind of case is pretty rare. You don't find many charges equivalent to a customs duty these days.

But in its judgment in Case C-173/05 Commission v. Italy, the Court of Justice held that a tax imposed by the Sicilian authorities on gas pipelines was a charge having equivalent effect to a customs duty prohibited by Articles 23 and 25 EC.

The local authorities in Sicily instituted a tax on the ownership of gas pipelines that carried gas from Algeria up into mainland Italy. The tax was ostensibly an "environmental tax". The catch in this case was that the tax was payable only when gas actually present in the pipeline. Consequently, the Court held that the Sicilian tax is a charge levied on goods (the gas) imported from a non-member country (Algeria) for distribution and consumption in Italy or in transit to other member States.

The Court also held that the Sicilian tax was contrary to Article 133 EC and to Article 9 of the Cooperation Agreement between Algeria and the EC.

Swedish alcohol monopoly takes a blow: Case C-170/04

The Court of Justice has handed down a judgment in Case C-170/04 Klas Rosengren and others v. Riksåklagaren which restricts the scope of the Swedish retail alcohol monopoly. The judgment deals with just one aspect of the monopoly - the importation of drinks by private individuals - and does not deal with the very existence of the monopoly itself.

The story goes like this. According to the Swedish Law on alcohol, retail sales of booze in Sweden are carried out under a monopoly held by Systembolaget. Only Systembolaget and wholesalers authorised by the State may import alcoholic beverages. Private individuals are prohibited from importing booze. If a person wants to import alcohol from another member State, that person must do so exclusively through Systembolaget. Systembolaget is required to obtain any alcoholic beverage on request at the consumer’s expense, provided that it sees no objection to doing so.

Klas Rosengren and several other Swedes ordered cases of bottles of Spanish wine by correspondence. The wine was imported into Sweden, without being declared to customs, by a private transporter. The wine was then confiscated by the Swedish customs authorities. Mr Rosengren and the others were charged with the criminal offense of unlawful importation of alcoholic beverages.

The Swedish Supreme Court asked the Court of Justice whether the provisions of the Swedish legislation are compatible with Community law, in particular with the principle of free movement of goods guaranteed by the Treaty.

The Court cut straight to the chase and held that the Swedish rules on importation of booze must be assessed in the light of the EC provisions on the free movement of goods (Article 28 EC) and not in the light of the specific provisions relating to State monopolies (Article 31 EC), since the latter apply only to rules relating to the existence or operation of monopolies (see Case C-189/95 Franzén. The importation of alcoholic beverages is not the specific function assigned to the monopoly by the Law on alcohol, which rather confers on the monopoly the exclusive right to retail sales of alcoholic beverages in Sweden.

The Court held that the Swedish rules on importation constituted a clear quantitative restriction on the free movement of goods. Even though the Systembolaget could not in principle refuse to import on the request of individual, by forcing consumers to address themselves to the monopoly body, the law imposed on them a variety of inconveniences with which they would not be faced if they imported the beverages themselves. The Court also noted that the price charged by the Systembolaget to consumers included all manner of extras which would not have been charged in the event of a direct import.

The Court then went on to examine whether the restriction could be justified. It held that it could not be justified. In particular, it held that the prohibition of importation must be considered unsuitable for attaining the objective of protecting the health and life of persons and was clearly disproportionate to the goal of protecting young people because it applied to all, regardless of age.

Public statements, obstacles to trade and state liability: Case C-470/03

The Court of Justice recently handed down an important judgment in an intriguing case. In Case C-470/03 A.G.M.-COS.MET Srl v. Suomen valtio, Tarmo Lehtinen the issue raised was whether a public statement by a civil servant could constitute an obstacle to the free movement of goods within the meaning of Article 28 EC.

In this case, an official of a Finnish government department made public statements to the effect that an identified type of vehicle lift manufactured in Italy was defective and should not be placed on the market.

The Court held that the matter of the free movement of vehicle lifts was governed by Directive 98/37/EC on the approximation of the laws of the Member States relating to machinery and not by Article 28 EC. The Court stated that Directive 98/37/EC carried out exhaustive harmonization at EC level of the rules on the free movement of machinery and consequently the Treaty provisions on the free movement of goods and in particular Article 28 EC did not apply but those of the Directive did (see Case C-309/02 Radlberger Getränkegesellschaft and S. Spitz at paragraph 53).

That point is of great practical importance but overlooked by many academic texts. But that is a digression...

The Court held that a statement made publicly by a civil servant, even though the statement carried no legal force, can constitute an obstacle to the free movement of goods prohibited by Directive 98/37/EC (and by Article 28 EC if applicable) if the addressees of the statement understand it to reflect the official position taken by the State.

As a consequence, the member State may be liable in damages to compensate for the loss and damage caused by the statements of the civil servant. The Court adds that EC law does not preclude but does not require that the individual civil servant being personally liable in addition to the State.