C-110/05, Italian Trailers [2009]

1. Facts

• Issue: The case involved a challenge to a rule in the Italian road safety code that prohibited the towing of Italian trailers by motorbikes and similar vehicles.

2. Outcome

• Decision: The Court held that the rule fell under Article 34 TFEU.

3. Impact and Analysis

AG Bot’s Opinion:

◦ Criticism of Keck: Advocate General Bot agreed with the criticisms raised by Advocates General Jacobs and Maduro in Leclerc-Siplec. He argued that the distinction made in Keck was inappropriate and that there was a divergence between the free movement of goods and other freedoms.

◦ Three Situations Under Article 34:

1. Discrimination Against Imports: Measures that discriminate against products from other Member States by treating them less favourably.

2. Product Requirements: Requirements that products must meet, as outlined in Cassis de Dijon.

3. Market Access: Any measure that hinders access to the market, governed by the Dassonville formula, even if it does not involve direct discrimination.

• Market Access Test:

◦ Application: Applied in this case, where the prohibition on using the product affected consumer behaviour and demand. The Court declined to extend the Keck approach to user arrangements, favouring a broader market access test.

◦ Assessment: The test should not involve complex economic data. Restrictions on market access are those that can hinder access either directly or indirectly, returning to the Dassonville formula.