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In the areas of freedom to provide services and freedom of establishment the Court has not formulated any similar categorisation of national measures so far. On the other hand, it seems that the Court may de facto have started excluding certain types of non-discriminatory rules from review. 145 Interestingly, in the Services Directive the EU have tried to introduce a very comprehensive and detailed categorisation listing rules which should be subject to review, even though not discriminatory. 146 This Directive may reflect the desire of the Member States to limit the review of non-discriminatory restrictions. However the list will probably not influence the Court, and the Court has the final word on the interpretation of the Treaty-based rules on free movement.
As a result of the problems caused by the product requirements/selling arrangements distinction made in Keck, in recent years the focus has shifted towards the distinction between rules that regulate market access and those that do not. This criterion for categorising rules also has its origin in the Keck judgment, as the Court explained that non-discriminatory selling arrangements could not prevent allowing foreign goods ‘access to the market’. 147 Many commentators have identified this criterion as being decisive, and the Court has given encouragement to this point of view by referring to it in many cases. 148 However it is not at all clear which measures regulate market access and which do not. ThereThus e.g. the Court has decided that national rules regulating the use of goods should be reviewed, even though they are non-discriminatory and even though they are difficult to fit into the category ’product requirements’; see Case C-265/06, Commission v Portugal  ECR I-2245; Case C-110/05, Commission v Italy  ECR I-519; and Case C-142/05, Mickelsson  ECR I-4273.
See e.g. the strong opposition to any attempt to interpret GATS Article XVI expansively, formulated by Pauwelyn, ‘Rien ne Va Plus?’, 160.
This is the case with rules on direct taxation; see above in section 3.1.2.
See Directive 2006/123/EC. Articles 9-13 formulate requirements for the granting of authorisations for service providers; in Article 14 there is a list of requirements that are prohibited; and in Article 15(2) there is a list of measures which should be reviewed even if not discriminatory. As for national measures affecting the provision of cross-border services, Article 16 outlines a broad ban on non-discriminatory restrictions, but then Article 17 lists a number of measures that are exempt from review. For the sake of completeness it should be noted that Articles 1-2 of the Directive exempt a number of national measures from its ambit, and it is worth noting that taxation is one of them; see Article 2(3).
See para. 17 of the judgment.
It has been argued that market access is a suitable criterion, for instance by Advocate General Maduro in his Opinion in Joined Cases C-158-159/04, Alfa Vita Vassilopoulos  ECR I-8135; and by Advocate General Fennelly in his Opinion in Case C-190/98, Graf  ECR I-493.
fore the criterion has been criticised for lacking substance, and there is a strong need for clarification if the Court believes that this criterion should be used to define those measures that should be subject to review. The market access criterion is also used in WTO law. GATS Article XVI is headed Market Access and, as explained above, it prohibits some nondiscriminatory restrictions. However the term ‘market access’ is normally used as the opposite of domestic regulation; for example it is used to distinguish between measures falling under GATT Article XI and those falling under Article III. Therefore it is clear that in the WTO market access does not function as a criterion for submitting certain non-discriminatory measures to a review.
4. How should the review be performed?
The review of non-discriminatory restrictions will normally involve the balancing of different interests. The review is made on a case-by-case basis, involving an examination of the features of the national measure in question. The only exception to this is where certain very specific national measures are prohibited without reservations, and such measures will be prohibited unless they fall under one of the exceptions in the TFEU or in the relevant WTO Agreement. 150 It is not possible to go in detail about the test here, and only some broader issues are touched upon.
4.1. Procedural issues Under EU law the principle of direct effect ensures that the citizens may challenge national measures in their national courts, and the national courts then have the possibility of referring the case to the Court for a preliminary ruling.
The Commission can also challenge national measures by bringing an action against a Member State before the Court. In this way the Court is involved in many cases in which national measures are reviewed. WTO law does not require the Members to apply the principle of direct effect, so the possibility of challenging national measures at national level depends on national law. Only Members can initiate proceedings with the Dispute Settlement Body, and consequently in the WTO there are far fewer cases in which national measures are challenged.
These differences explain why there are fundamental differences in how a review is undertaken. In the WTO the burden of proof is on the Member challenging the national measure of another Member. In the EU the burden of proof will shift to the Member State that has adopted a measure once it is proved that the measure constitutes a non-discriminatory restriction. This does not happen in For a critical assessment of the market access criterion, see Snell, ‘The Notion of Market Access’, 437-472;
Davies, ‘Understanding Market Access’, 671-703; C. Barnard, ‘Restricting Restrictions: Lessons for the EU from the US?’, Cambridge Law Journal, 68 (2009), 575-606; P. Oliver and S. Enchelmaier, ‘Free movement of goods: Recent development in the case law’, Common Market Law Review, 44 (2007), 649-704; and Spaventa, ‘From Gebhard to Carpenter’, 743-773.
E.g. the measures prohibited in GATS Article XVI do not require any balancing of interests. But it should still be considered whether the exception in Article XIV applies, or whether reservations are included in the commitments of Members.
the same way in the WTO. 151 Consequently a review is felt to be much more intense in the EU, and it has been argued that the burden of proof should be changed so that there is a presumption that national measures do not infringe the rules on free movement. 4.2. Legitimate objectives When reviewing non-discriminatory restrictions, the first step will normally be to ensure that a measure has been enacted to fulfil legitimate objectives. The objectives that may justify trade restrictions are normally various concerns of public or general interest. For example, different types of concerns are listed in the general exceptions in Article 36 TFEU, GATT Article XX and GATS Article XIV. But this list of concerns has been developed for exempting discriminatory rules, so that additional justifications are often available for nondiscriminatory restrictions, as it is considered reasonable that the Member States/Members should be given wider room for manoeuvre in enacting such restrictions. 154 Such additional grounds for justification were developed by the Court in the Cassis de Dijon case, and are explicitly given in SPS 2.1 and TBT 2.2. 155 The grounds for justification under the SPS Agreement are exhaustive, but under the TBT Agreement and under the Cassis de Dijon doctrine in principle all kinds of concerns which a Member State/Member has a legitimate interest to protect can be accepted as justification. There is extensive case law from the Court, illustrating that the list of grounds for justification is indeed extensive.
Since the list is non-exhaustive, one of the aims of a review will be to ensure that the real aim is not protectionist. 4.3. Testing for equivalence As mentioned in section 4.2, mutual recognition will often be conditional on the rules in the state of origin being equivalent to those in the state of destination. To test whether this is the case it is necessary to examine the rules in the state of origin and compare these with those of the state of the destination. This is an integral part of the test developed by the Court in Cassis de Dijon in relaSee also Ortino, Basic Legal Instruments, p. 469; and WTO Secretariat note, ‘”Necessity Tests” in the WTO’, paras 40-49. Of course, in some cases the burden will eventually shift to the Member who is alleged to have infringe WTO law, but generally this will only happen when the Member arguing that there is an infringement has lifted a substantial burden of proof.
See Barnard, ‘Restricting Restrictions’, p. 605. On the other hand, the straightforward burden of proof applicable in the WTO has been seen as a barrier to the removal of restrictions, as it is difficult for Members to provide such proof; see J. Scott, ‘Mandatory or Imperative Requirements in the EU and the WTO’, in C. Barnard and J. Scott (eds.), The Law of The Single European Market (Hart Publishing, 2002), pp. 289-90.
There are examples of non-discriminatory restrictions that are prohibited without allowing any room for justification, apart from the general exceptions. This is the case with the measures referred to in GATS Article XVI and Article 14 of the Services Directive.
See also Weiler, The EU, The WTO and the NAFTA, p. 216.
Interestingly, when the Panel decided to review PPMs for infringement of GATT Article XI it did not seem inclined to develop additional grounds for justification, but only allowed the USA to rely on the general exception in GATT Article XX.
The Court also has proved unwilling to accept administrative or economic problems as legitimate concerns.
These concerns are not legitimate objectives under the SPS Agreement, but it is more uncertain whether they are legitimate concerns under the TBT Agreement; see the discussion in Scott, ‘Mandatory or Imperative Requirements’, pp. 291-292.
tion to technical regulations, and the test developed in relation to the freedom to provide services. 157 It is also an element of the test under SPS Article 4.1. Under the SPS Agreement certain guidelines have been developed for how the Members should approach such testing. They regulate how the exporting and importing states should collaborate. 159 In the EU similar guidelines have been developed by the Court, supplemented by soft law guidelines and legislation. However, the EU guidance does not so much focus on the relationship between Member States as on the relationship between the importer or service provider and the state of destination.
4.4. Testing for proportionality Testing for proportionality is an essential element of the review of nondiscriminatory restrictions. In most cases it will actually be the most essential element of the review. This test is termed a ‘proportionality test’ in the EU, whereas it is normally termed a ‘necessity test’ or the ‘least trade restrictive test’ in the WTO. However these tests have many common features. In both systems there is a test of suitability and a test of necessity. 161 The suitability test examines whether the means are suitable for attaining the end. The necessity test weighs competing interests, normally the implications for trade balanced against the importance of the public interest pursued. This includes a requirement that the least restrictive means capable of achieving the same result should preferred.