Commission of the European Communities v Italian Republic.
Date: 2009-02-10
33. It should be 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-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, in particular, Dassonville , paragraph 5).
34. It is also apparent from settled case-law 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  [1983] ECR 2445, paragraph 26; Case 120/78 Rewe‑Zentral  (‘ Cassis de Dijon ’) [1979] ECR 649, paragraphs 6, 14 and 15; and Keck and Mithouard , paragraphs 16 and 17).
35. Hence, 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 constitute measures of equivalent effect to quantitative restrictions even if those rules apply to all products alike (see, to that effect, ‘ Cassis de Dijon ’, 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).
36. By contrast, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States for the purposes of the case‑law flowing from Dassonville , 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 Keck and Mithouard , paragraphs 16 and 17).
37. Consequently, 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 the measures referred to in paragraph 35 of the present judgment. 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.
The failure to fulfil obligations
56. It should be noted in that regard that a prohibition on the use of a product in the territory of a Member State has a considerable influence on the behaviour of consumers, which, in its turn, affects the access of that product to the market of that Member State.
57. 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  [2008] ECR I‑0000, paragraph 33, concerning the affixing of tinted film to the windows of motor vehicles). Thus, Article 56 of the Highway Code prevents a demand from existing in the market at issue for such trailers and therefore hinders their importation.
58. It follows that the prohibition laid down in Article 56 of the Highway Code, to the extent that its effect is to hinder access to the Italian market for trailers which are specially designed for motorcycles and are lawfully produced and marketed in Member States other than the Italian Republic, constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC, unless it can be justified objectively.
59. Such a prohibition may be justified on one of the public interest grounds set out in Article 30 EC or in order to meet imperative requirements (see, in particular Case C‑420/01 Commission  v Italy  [2003] ECR I‑6445, paragraph 29, and Case C‑270/02 Commission  v Italy  [2004] ECR I‑1559, paragraph 21). In either case, the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it (Case C‑54/05 Commission  v Finland  [2007] ECR I‑2473, paragraph 38, and Case C‑297/05 Commission  v Netherlands  [2007] ECR I‑7467, paragraph 75).
60. In the present case, the justification put forward by the Italian Republic relates to the need to ensure road safety, which, according to the case-law, constitutes an overriding reason relating to the public interest capable of justifying a hindrance to the free movement of goods (see, in particular, Case C‑55/93 van Schaik  [1994] ECR I‑4837, paragraph 19; Case C‑314/98 Snellers  [2000] ECR I‑8633, paragraph 55; Commission  v Finland , paragraph 40, Commission  v Netherlands , paragraph 77, Commission  v Portugal , paragraph 38; and C‑170/07 Commission  v Poland  [2008] ECR I‑0000, paragraph 49).
61. In the absence of fully harmonising provisions at Community level, it is for the Member States to decide upon the level at which they wish to ensure road safety in their territory, whilst taking account of the requirements of the free movement of goods within the European Community (see, to that effect, Case 50/83 Commission  v Italy  [1984] ECR 1633, paragraph 12, and, by analogy, Case C‑131/93 Commission  v Germany  [1994] ECR I‑3303, paragraph 16).
62. According to settled case-law, it is for the competent national authorities to show that their rules fulfil the criteria set out in paragraph 59 of the present judgment (see, to that effect, Commission  v Netherlands , paragraph 76, Commission  v Portugal , paragraph 39, and Case C‑286/07 Commission  v Luxembourg  [2008] ECR I‑0000, paragraph 37).
64. In that regard, it must be held that the prohibition in question is appropriate for the purpose of ensuring road safety.
65. With regard, second, to whether the said prohibition is necessary, account must be taken of the fact that, in accordance with the case-law of the Court referred to in paragraph 61 of the present judgment, in the field of road safety a Member State may determine the degree of protection which it wishes to apply in regard to such safety and the way in which that degree of protection is to be achieved. Since that degree of protection may vary from one Member State to the other, Member States must be allowed a margin of appreciation and, consequently, the fact that one Member State imposes less strict rules than another Member State does not mean that the latter’s rules are disproportionate (see, by analogy, Case C‑262/02 Commission  v France  [2004] ECR I‑6569, paragraph 37, and Case C‑141/07 Commission  v Germany  [2008] ECR I‑0000, paragraph 51).
66. In the present case, the Italian Republic contends, without being contradicted on this point by the Commission, that the circulation of a combination composed of a motorcycle and a trailer is a danger to 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 (see, by analogy, Case C‑157/94 Commission  v Netherlands  [1997] ECR I‑5699, paragraph 58).
67. Although it is possible, in the present case, to envisage that measures other than the prohibition laid down in Article 56 of the Highway Code could guarantee a certain level of road safety for the circulation of a combination composed of a motorcycle and a trailer, such as those mentioned in point 170 of the Advocate General’s Opinion, 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.