Taxation in European Union by Pietro Boria

Author:Pietro Boria
Language: eng
Format: epub, pdf
Publisher: Springer International Publishing, Cham

6.1.3 The Judgment Concerning the Non-restriction in the European Jurisprudence

The principle of non-restriction has been formulated for the first time by the Court of Justice in the case Dassonville (case 01/28/1974, C-8/74) being expressly stated that “all trading regulations enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade should be regarded as a measure having equivalent effect to the quantitative restrictions”.

So it is established that the judgment on the principle of non-restriction affects the legality of a national standard because of the obstructive and/or restrictive effects with respect to intra-Community trade. Therefore it must carry out a verification of the restrictive effects through an teleological assessment on the national rule.

In particular, the test of restriction is accomplished by the investigation of the disadvantage that the foreign person suffers in relation to the intra-Community trade as a result of the legislation of a Member State.

On the other hand, the restrictive measure can be justified in a matter of overriding national general interest according to the parameter of rationality. It is a complex evaluation that involves the balancing of the interests of the European Union with the national interests which will be examined in more detail later (see below, Chap. 7).

The judgment on the principle of non-restriction is therefore a typical binary structure as it is divided into two basic steps:a.determination of a regulatory hurdle about the freedom of movement provided for by the Treaty;

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