''Commission v Italy'' (2009) C-110/05 is an

EU law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its val ...

case, concerning the free movement of goods in the European Union. This case is commonly referred to as Italian Trailers''', and is predominantly known for establishing the 'market access test'.

Facts

Italian law prohibited

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and

mopeds A moped ( ) is a type of small motorcycle, generally having a less stringent licensing requirement than full motorcycles or automobiles. The term used to mean a similar vehicle except with both bicycle pedals and a motorcycle engine. Mopeds typi ...

from pulling trailers (that is, it regulated the use of a product). It applied without regard to the origin of the trailers, but it only affected imported goods in fact. Italian manufacturers did not make such trailers to be towed by motorcycles. The Commission challenged the Italian law as being contrary to

TFEU The Treaty on the Functioning of the European Union (TFEU) is one of two treaties forming the constitutional basis of the European Union (EU), the other being the Treaty on European Union (TEU). It was previously known as the Treaty Establishi ...

article 34.

Judgment

Advocate General Bot

AG Bot argued that this should be considered a measure equivalent to a quantitative restriction on trade, that required justification.

Court of Justice

Court of Justice held that a measure hindering market access would be considered a measure equivalent to a quantitative restriction on trade, but that it could be justified on the facts.

Criticism and development of the Italian Trailers jurisprudence

The market access test, established in this case, has been criticised for lack of clarity due to the Court having never defined 'market access'. ''Italian Trailers'' held that laying down requirements to be met by goods can constitute measures having equivalent effect to quantitative restrictions if they present an obstacle to their free movement, even if those rules apply to all products alike, demonstrating an excessively broad scope for what will constitute a measure equaling equivalent effect to a quantitative restriction. This test has, however, been the most preferred approach, having overridden the discrimination test introduced by ''

Keck and Mithouard ''Reference for a Preliminary Ruling in the Criminal Proceedings against Bernard Keck and Daniel Mithouard'' (1993) C-267/91 is an EU law European Union law is a system of rules operating within the member states of the European Union (EU) ...

'', and attracted wide-spread academic support for replacing all three tests adopted since ''Keck'' with a unitary market access test. The recent case of ''Ker-Optika'' evidenced a case regarding selling arrangements being decided using a market access test rather than the discrimination test outlined in ''Keck'',Case C-108/09, ''Ker-Optika bt v ÀNTSZ Dél- dunántúli Regionális Intézete''

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ECR I-12213. demonstrating how the courts may already be taking this approach.

References