Memorandum - Free Movements of Goods

Extract

[...] The caselaw is instructive due mainly to the similarity with the situation at stake, namely the Yellow Vests' roadblock of the Mont Blanc tunnel. In caselaw C-265/95, proceedings were raised by the company Eugen Schmidberger, Internationale Transporte und Planzüge ("Schmidberger") against the Republic of Austria, in reference to the roadblock of the Brenner motorway for almost 30 hours by an environmental group. Such proceedings bring the Commission to revisit the caselaw C-265/95, known as the "Strawberry War" case, in light of specific roadblock circumstances, and to provide further clarifications as regards to the definition of barriers attributable to the Member State while the actions of private persons, acceptable justifications in view of fundamental freedoms, and conditions under which the Member State's liability is incurred in case of breach of EU rules. [...]

[...] for 28 hours, restricting intra-Community trade in goods. Yet, the fundamental freedom has to be reconciled with the respect of the fundamental rights of the demonstrators to freedom of expression and freedom of assembly. In application of the lessons from the Schmidberger's case, it is clear-cut that failure to ban from French authorities can be objectively justified. In this view, chance of success of proceedings on such grounds seem at this stage very weak. What remains to be documented, and a possible way to search French government's liability, would be to evidence the fact that French competent authorities did not take necessary and proportionate measures to mitigate the impacts of such roadblock such as the measures taken by Austria (e.g., extensive publicity campaign, designation of various alternative routes, communication and information of economic operators, set-up of security arrangements). [...]

[...] I-6959, points 33 to 35). An obligation of means of the Member States Advocate General Lenz has emphasized in its conclusions the fact that if Member States should not be considered subject to an obligation of performance, here the free movements of goods, nonetheless it is mandatory for the Member State concerned to adopt all necessary and proportionate measures to reach such result, in the situation at stake in caselaw C-265/95, to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals. [...]

[...] THE FACTS As a reminder, the fact at stake are the following: Since November numerous demonstrations have occurred in France every Saturday during which "Yellow Vests" demonstrators challenged, first French government's controversial increase of fuel taxes, then more broadly incompatibility between the cost of living in France and low income of the poorest families and individuals in the French population, yet considered to wealthy to get any financial assistance from the State. In the week running up to Xmas, the Yellow Vests decided to block (or at least slow down) imports and exports to and from France by stopping the movement of trucks on the borders. As a consequence, from Saturday, December a.m. until December a.m., roadblocks were organized throughout the country on motorways, especially at the borders of France with its neighboring countries. One of the roadblocks targeted the Mont Blanc tunnel, at the border between France and Italy. [...]

[...] and 9 a.m.: no truck at all was allowed to pass through. Then, from Saturday, December a.m. until December a.m., only one truck was allowed to proceed once every 15 minutes. As a result, most trucks were delayed by several hours. The Yellow Vests on that specific roadblock targeting the Mont Blanc tunnel had followed the legal procedure mandated by French law: they had warned the préfecture in advance that they would be protesting, and the demonstration had not been prohibited by the authorities. [...]