Opinion of the Advocate General — ECLI:EU:C:2008:386
Date: 2006-10-05
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Italy

Summary of the Judgment 1. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Meaning (Art. 28 EC) 2. Free movement of goods – Quantitative restrictions – Measures having equivalent effect (Arts 28 EC and 30 EC) 1. 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. Measures adopted by a Member State the object or effect of which is to treat products coming from other Member States less favourably are to be regarded as measures having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC, as are, in the absence of harmonisation 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 even if those rules apply to all products alike. 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. (see paras 34-35, 37) 2. A Member State which, for reasons of road safety, prohibits mopeds, motorcycles, motor tricycles and quadricycles from towing a trailer specially designed for them and lawfully produced and marketed in other Member States has not failed to fulfil its obligations under Article 28 EC. Such a prohibition certainly constitutes a measure having equivalent effect to quantitative restrictions on imports prohibited by that article to the extent that its effect is to hinder access to the market at issue for trailers specifically designed for motorcycles inasmuch as it has a considerable influence on the behaviour of consumers and prevents a demand from existing in the market at issue for such trailers. However, that prohibition must be regarded as justified by reasons relating to the protection of road safety. Whilst it is true that it is for a Member State which invokes an imperative requirement as justification for the hindrance to free movement of goods to demonstrate that its rules are appropriate and necessary to attain the legitimate objective being pursued, that burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions. Although it is possible, in the present case, to envisage that measures other than the prohibition at issue could guarantee a certain level of road safety for the circulation of a combination composed of a motorcycle and a trailer, the fact remains that Member States cannot be denied the possibility of attaining an objective such as road safety by the introduction of general and simple rules which will be easily understood and applied by drivers and easily managed and supervised by the competent authorities. (see paras 56-58, 66-67, 69)