As section 2.1.2 demonstrated, when the Court, in Cassis, brought dual regulatory burdens within the material scope of Article 34 TFEU, it created interactions between free movement and a diverse range of legitimate domestic policy goals, not targeted at undermining the internal market but capable of inhibiting its completion. For instance, each Member State had, independently, enacted rules to protect the position of consumers in light of their generally weaker position on the market place. These rules were not a deliberate attack on foreign goods. The disadvantage they created for importers lay in the fact that the Member State of production implemented this legitimate policy goal differently from the importing Member State. Although the Treaty drafters had envisaged, through the exhaustive lists contained in the derogating provisions,114 that, in some instances, restrictions on free movement might be the result of the pursuit of other valid goals, the introduction of DRBs caused free movement to interact with Member State endeavours, such as consumer protection, that did not feature in these lists. Consequently, in apparent acknowledgement of the qualitatively different nature of DRBs, the Court accepted that where measures were not distinctly applicable, Member States could justify restrictions on free movement by reference to the mandatory requirements facing a State, which included, but were not limited to: fiscal supervision, consumer protection, and the fairness of commercial transactions. Thus, the Court had catered, substantively, for the changed free movement/domestic restriction dynamic post-Cassis.
However, in other ways Cassis maintained, and was inherently built upon, an intrinsic preference for free movement. First, the language surrounding the substantive expansion of potential justifications nevertheless connotes the procedural subjugation of national rules: they must be ‘mandatory’ or, in relation to the other freedoms, ‘imperative’ or ‘overriding’.
114 On the exhaustive nature of the Treaty derogations see: Case 113/80 Commission v Ireland [1981]
110 Further, the finding, in Cassis, that domestic rules must be necessary in order to achieve the relevant aim, introduces the same basic proportionality test for the justification of DRBs that is applied to protectionist or directly discriminatory policy, as part of a two-stage breach/justification assessment. This was confirmed across the four freedoms, and applied to rules restricting market access, in Gebhard.115 Here, the Court explicitly provided the applicable test in this context. Measures had to operate in a non-discriminatory manner; be suitable for attaining the objective pursued; and must not go beyond what is necessary to achieve it.116 Yet, as we have seen, the expansion of the scope of the market freedoms creates more opportunity for conflict between them and fundamental rights. Accordingly, the retention of the two-stage model in this context exposes fundamental rights to further structural subjugation. Indeed, we see the Gebhard formula applied in, for example, all of the fundamental rights cases discussed in chapter one, namely, Familiapress,117 Omega,118 Viking,119 Laval,120 Rüffert,121 Commission v Luxembourg122 and Dynamic Medien,123 all of which concern indistinctly applicable measures or rules restricting market access.124 The effects of this structural prioritisation of free movement will be explored in section 3.3. For now, we can already see that they are disadvantaged by their procedural presentation as prima facie unlawful and their consequent exposure to the standard proportionality questions of ‘necessity’ and ‘suitability’, which is often assessed by reference to whether outcomes less restrictive of free movement are available.125
Thus, despite a substantive recognition of the qualitatively different nature of the national rules with which free movement interacts in the post-Cassis era, there remains an historical hangover in terms of the procedure used for adjudicating conflict. The next subsection argues that, while a restrictive proportionality assessment has been retained for justifications post-
Cassis, the evolution of free movement beyond instances of discrimination has necessarily and simultaneously rendered it progressively easier to establish a breach of free movement.
115 Case C-55/94 Gebhard, n.46 116 Para.37 117 Case C-368/95 Familiapress, n.15 118 Case C-36/02 Omega, n.33 119 Case C-438/05 Viking, n.54 120 Case C-341/05 Laval, n.21
121 Case C-346/06 Rüffert [2008] EU:C:2008:189
122 Case C-319/06 Commission v Luxembourg [2008] EU:C:2008:350 123 C-244/06 Dynamic Medien, n.3
124
Although the rigorousness of application is variable, see ch.1, s.3.1
125 Joined Case C-197/11 and C-203/11 Libert, n.48; Case 179/85 Commission v Germany (pétillant de raisin)
111 This ever-widening evidentiary gap increases the structural bias in favour of free movement and against fundamental rights since applicants pursuing free movement have broad opportunities to establish a presumption of illegality in relation to the protection or exercise of fundamental rights by Member States or individuals. Certainly, there is no consideration, at the breach stage, of the impact of the pursuit of free movement on the exercise of fundamental rights. The weighing of these competing norms takes place at the justification stage where judicial focus is solely on assessing whether fundamental rights can overcome a prima facie
unlawful breach of free movement. Thus, fundamental rights can be exposed to a restrictive proportionality assessment even against broadly-defined and minimal restrictions on free movement.