The Road to Ruin: 'Restrictions on Use' and the Circular Lifecycle of Article 34 TFEU
(2012) European Journal of Consumer Law, Issue 2 (Forthcoming)
9 Pages Posted: 11 Oct 2012
Date Written: September 26, 2012
In early 2011 a man called Mr Coates was fined for riding his Segway - a type of two-wheeled motorised scooter - on the pavement in Barnsley. In fact the law does not simply ban the use of Segways on the pavement. They may not be used on public roads either. So their use is restricted to private land. Assuming the Segway is made or marketed in another Member State of the European Union, is there any scope for invoking EU free movement law? There is no discrimination involved, nor is the product excluded because its specifications do not comply with British technical standards. What is at stake is a rule restricting the use of a product. The rule simply has the effect that the product cannot be freely used as the owner would wish – and it doubtless makes the British market for Segways less attractive to sellers than markets with fewer such restrictions. So is this within the scope of Article 34 TFEU? If it is, Article 34 TFEU has a rather alarmingly broad reach. In the High Court Munby LJ concluded that poor Mr Coates could not rely on EU law (or any other kind of law) to defend himself. His conviction was affirmed. But the tale illuminates the underlying thematic anxiety in EU law governing the construction of an internal market that its aggressive exploitation by parties wishing to challenge obstacles to their exercise of their commercial freedom may cut deep into local regulatory autonomy – and that the Court of Justice has done a poor job in fixing the limits of such incursion. Robust judges like Munby LJ in the Segway case will sweep away adventurous reliance on EU law, but the Court of Justice’s imprecise vocabulary in its cases on restrictions on use inevitably invites and encourages such litigious adventure in future.
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