Commission of the European Communities v Italian Republic.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Lõhmus
• ECLI: ECLI:EU:C:2009:66
• Date: 10 February 2009
• Docket Number: C-110/05
• Procedure Type: Recours en constatation de manquement - non fondé

Case C-110/05

Commission of the European Communities

v

Italian Republic

(Failure of a Member State to fulfil obligations – Article 28 EC – Concept of ‘measures having equivalent effect to quantitative restrictions on imports’ – Prohibition on mopeds, motorcycles, motor tricycles and quadricycles towing a trailer in the territory of a Member State – Road safety – Market access – Obstacle – Proportionality)

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)

JUDGMENT OF THE COURT (Grand Chamber)

10 February 2009 (*)

(Failure of a Member State to fulfil obligations – Article 28 EC – Concept of ‘measures having equivalent effect to quantitative restrictions on imports’ – Prohibition on mopeds, motorcycles, motor tricycles and quadricycles towing a trailer in the territory of a Member State – Road safety – Market access – Obstacle – Proportionality)

In Case C‑110/05,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 4 March 2005,

Commission of the European Communities, represented by D. Recchia and F. Amato, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Italian Republic, represented by I.M. Braguglia, acting as Agent, assisted by M. Fiorilli, avvocato dello Stato, with an address for service in Luxembourg,

defendant,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts and T. von Danwitz, Presidents of Chambers, A. Tizzano, J.N. Cunha Rodrigues, A. Borg Barthet, J. Malenovský, U. Lõhmus (Rapporteur), A. Arabadjiev and C. Toader, Judges,

Advocate General: P. Léger, later Y. Bot,

Registrar: L. Hewlett, Principal Administrator, later M. Ferreira, Principal Administrator,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 5 October 2006,

having regard to the order of 7 March 2007 re-opening the oral procedure and further to the hearing on 22 May 2007,

having regard to the written and oral observations submitted by:

– the Commission of the European Communities, by D. Recchia and F. Amato, acting as Agents,

– the Italian Republic, by I.M. Braguglia, acting as Agent, assisted by M. Fiorilli, avvocato dello Stato,

– the Czech Republic, by T. Boček, acting as Agent,

– the Kingdom of Denmark, by J. Bering Liisberg, acting as Agent,

– the Federal Republic of Germany, by M. Lumma, acting as Agent,

– the Hellenic Republic, by N. Dafniou, acting as Agent,

– the French Republic, by G. de Bergues and R. Loosli, acting as Agents,

– the Republic of Cyprus, by K. Lykourgos and A. Pantazi‑Lamprou, acting as Agents,

– the Kingdom of the Netherlands, by H.G. Sevenster and C. ten Dam, acting as Agents,

– the Kingdom of Sweden, by A. Kruse, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 8 July 2008,

gives the following

Judgment

1 In its application, the Commission of the European Communities asks the Court to find that, by maintaining rules which prohibit mopeds, motorcycles, tricycles and quadricycles (‘motoveicoli’, hereinafter ‘motorcycles’) from towing a trailer, the Italian Republic has failed to fulfil its obligations under Article 28 EC.

Legal context

Community rules

2 Council Directive 92/61/EEC of 30 June 1992 relating to the type‑approval of two or three-wheel motor vehicles (OJ 1992 L 225, p. 72) laid down uniform definitions and the procedure for granting Community type-approval or component type-approval in respect of certain types of vehicle covered by the directive. Article 1(1) and (2) thereof provide as follows:

‘1. This Directive applies to all two or three-wheel motor vehicles, twin‑wheeled or otherwise, intended to travel on the road, and to the components or separate technical units of such vehicles.

…

2. The vehicles referred to in paragraph 1 shall be subdivided into:

– moped[s], i.e. two or three-wheel vehicles fitted with an engine having a cylinder capacity not exceeding 50 cm³ if of the internal combustion type and a maximum design speed of not more than 45 km/h,

– motorcycles, i.e. two-wheel vehicles with or without sidecar, fitted with an engine having a cylinder capacity of more than 50 cm³ if of the internal combustion type and/or having a maximum design speed of more than 45 km/h,

– motor tricycles, i.e. vehicles with three symmetrically arranged wheels fitted with an engine having a cylinder capacity of more than 50 cm³ if of the internal combustion type and/or a maximum design speed of more than 45 km/h.’

3 It is apparent from Article 1(3) that Directive 92/61 also applied to motor vehicles with four wheels, namely ‘quadricycles’, which were to be considered to be mopeds or motor tricycles depending on their technical characteristics.

4 The sixth recital in Council Directive 93/93/EEC of 29 October 1993 on the masses and dimensions of two or three-wheel motor vehicles (OJ 1993 L 311, p. 76), which is intended to harmonise imperative technical requirements in order to enable the type-approval and component type‑approval procedures laid down in Directive 92/61 to be applied, states the following:

‘Whereas the provisions of this Directive should not oblige those Member States which do not allow two-wheel motor vehicles on their territory to tow a trailer to amend their rules’.

5 The purpose of Directive 97/24/EC of the European Parliament and of the Council of 17 June 1997 on certain components and characteristics of two or three-wheel motor vehicles (OJ 1997 L 226, p. 1) is to further harmonise certain technical requirements of such vehicles, including coupling devices and attachments. The 12th recital in this directive states as follows:

‘Whereas … the object of the requirements of this Directive should not be to oblige those Member States which do not allow two or three‑wheel motor vehicles in their territory to tow a trailer to amend their rules’.

National legislation

6 In Italy, Article 53 of Legislative Decree No 285 of 30 April 1992 (GURI, ordinary supplement, No 114 of 18 May 1992, ‘the Highway Code’) defines motorcycles as motor vehicles with two, three or four wheels. Only four-wheeled vehicles may be called ‘motor quadricycles’.

7 Pursuant to Article 54 of the Highway Code, automobiles (‘autoveicoli’) are motor vehicles with at least four wheels, excluding the vehicles defined in Article 53 of the Code.

8 Pursuant to Article 56 of the Highway Code, only automobiles...