Acceptable level of protection

Are the Member States free to determine what level of protection for human health and/or the environment they want to maintain and then to adopt measures appropriate and necessary for achieving that level? With respect to protection of human life and health, the Court of Justice has in several cases confirmed that it is for the Member States to decide what degree of protection they intend to assure.10⁸ In doing this, however, the requirements of the free movement of goods within the EU must be taken into account.10⁹ Whether this leaves any room for a proportionality test in the strict sense, that is, weighing up of the interest of the desired level of protection against the impediment to the free movement of goods which the contemplated national measure would entail, has been the subject of some discussion.110 However, the Court has recently been rather explicit on this point when stating that

a Member State has the power to determine the degree of protection which it wishes to afford to human health and the way in which that degree of protection is to be achieved.

Since that degree of protection may vary from one Member State to another, Member States must be allowed discretion.^[1]

In a subsequent case concerning a national provision according to which only passenger cars with the steering equipment on the left-hand side could be registered in a Member State, however, the Court of Justice referred to the existence of ‘means and measures less restrictive of the free movement of goods than the measure at issue and, at the same time, capable of significantly reducing the risk’ associated with having the steering-wheel placed on the same side as the direction of the traffic as reason to find the national measure not necessary to attain the objective pursued.^[2] This raises doubts as to whether the Member State was in fact free to determine its own level of protection, since ‘capable of significantly reducing the risk’ is not necessarily the same thing as achieving the same level of protection of human life and health as that which was achieved by the challenged national provision.

What is definitely clear is that the Court of Justice may take another view than the Member State on whether a particular measure is necessary to ensure the chosen level of protection.^{[3] [4] [5] [6] [7] [8]} It is also for the Member State taking protective measures to demonstrate in each case, taking account of the results of international scientific research, that there is a genuine threat to human health.ⁿ⁴

It appears to be more demanding to show that such a threat exists in some areas than in others. At least with respect to measures that prohibit the marketing of foodstuffs lawfully manufactured and marketed in other Member States, the Court of Justice has found that a real risk for public health must appear to have been ‘sufficiently established on the basis of the latest scientific data available at the date of the adoption of such decision’.ⁿ5 However, if the risk assessment reveals a high degree of scientific and practical uncertainty, the Member State concerned may, in accordance with the precautionary principle, take protective measures without having to wait for the reality and the seriousness of those risks to be fully demonstrated.ⁿ⁶ When a national measure concerns products such as pesticides, which are typically intended to be harmful for at least some organisms, it seems less demanding to gain acceptance for its necessity.ⁿ⁷ When foodstuffs are at issue the Court is more likely to view information provided to consumers through labelling as a sufficient measure.n® This is perhaps not very surprising, but the apparently strong assumption that foodstuffs that have been lawfully marketed in one Member State should also be accepted in the other Member States must not be allowed to prevent a Member State from correcting a bad risk assessment or an excessively producer- friendly standard applied in another Member State.

When it comes to environmental protection without an immediate link to human health, the Court of Justice has not made any similarly clear statement. However, there is much to indicate that the Court does not, at least not since the Danish bottle case, overrule Member States’ decisions regarding protective level. It would also seem less appropriate for the Court to do so since the balancing of environmental protection against the interests of the internal market in areas without secondary EU law, and where the EU legislature has thus not taken a stand on the appropriate balance between these interests, is a political rather than a legal undertaking.^{[9] [10] [11]}

Having undertaken this analysis of the acceptable level of protection, it must be pointed out that any discussion that focuses exclusively on the level of protection risks becoming rather irrelevant in relation to the assessments actually made by the Court of Justice. The room for Member State action is more defined by the requirements relating to assessment and implementation of alternative measures and for showing that the measure chosen is suitable for achieving the stated protective aim. The ability to rely on the precautionary principle in cases of scientific uncertainty can also be greatly significant. The way in which a Member State measure is being challenged, by direct action by the Commission or by referral for preliminary ruling, may also influence the intensity of the review of those measures by the Court of JusticeTh⁰ Additional case-specific circumstances, such as ongoing legislative processes within the EU, may also be influential in determining whether the Commission will initiate a case against a Member State taking a trade-restrictive measure with the (stated) aim of protecting human health or the environment.121

• [1] Case C-421/09 Humanplasma ECLI:EU:C:2010:760, para 39.
• [2] Case C-639/11 Commission v Poland ECLI:EU:C:2014:173, para 63.
• [3] из Ibid, para 43. n4 Case C-333/08 Commission v France (n 45), para 87.
• [4] 115 Ibid, para 89.
• [5] 116 Ibid, para 91 with further references. On the application of the precautionary principle see
• [6] section 2.4.5.
• [7] Compare, eg, the outcome in Case C-400/96 Harpegnies (n 11) and Case C-443/02 Schreiber(n 108) (concerning plant protection products and biocidal products) with that in Case C-192/01Commission v Denmark (n 104) and Case C-333/08 Commission v France (n 45) (concerning additivesand processing aids for foodstuffs).
• [8] H Unberath and A Johnston ‘The Double-Headed Approach of the ECJ Concerning ConsumerProtection’ (2007) 44 Common Market Law Review 1237—84, 1252.
• [9] For a similar reasoning, see Jans and Vedder European Environmental Law (n 110) 288.
• [10] Regarding the intensity of the review see further Nic Shuibhne and Maci ‘Proving PublicInterest’ (n 91) 972.
• [11] Kramer EU Environmental Law (n 110) 101.