New Valmar BVBA v Global Pharmacies Partner Health Srl (Case...

Facts

• The case originated in Belgium, where New Valmar BVBA challenged a regional Walloon decree prohibiting the itinerant sale of subscriptions to periodicals.
• The decree was introduced for consumer protection against aggressive selling practices.
• This rule effectively obstructed New Valmar’s business model, based on itinerant sales.
• The Belgian court referred a question to the CJEU about whether such a measure falls within the scope of Article 34 TFEU, which prohibits quantitative restrictions and measures having equivalent effect between Member States.

Issues

1. Whether a national decree prohibiting itinerant sales of periodical subscriptions constitutes a restriction under Article 34 TFEU.
2. Whether the prohibition, although apparently non-discriminatory and applicable to all traders, could restrict market access for goods from other Member States.
3. Whether such restrictions may be justified for objectives such as consumer protection, and if so, whether they meet the principle of proportionality.

Decision

• The CJEU confirmed that measures hindering, directly or indirectly, actually or potentially, intra-EU trade are restrictions within the meaning of Article 34 TFEU.
• The Court clarified that even non-discriminatory selling arrangements can constitute a restriction if they impede market access for goods from other Member States.
• The Walloon decree, by prohibiting a sales method, restricted market access and thus fell within Article 34 TFEU.
• The Court acknowledged that restrictions can be justified for legitimate objectives (e.g., consumer protection) but must be proportionate and necessary for achieving those objectives.
• The CJEU questioned whether a total ban was proportionate or if less restrictive measures could achieve the aim of consumer protection.

Legal Principles

• Market access is a key criterion in determining whether a national measure restricts the free movement of goods under Article 34 TFEU.
• Even formally non-discriminatory national rules on selling arrangements may fall under Article 34 if they impede access to the market for products from other Member States.
• The principle of mutual recognition requires Member States to accept goods lawfully marketed elsewhere in the EU unless justified by overriding requirements.
• Measures restricting the free movement of goods may be justified for objectives such as consumer protection, but only if they are suitable and do not exceed what is necessary (proportionality).
• The judgment clarifies the application of the test from Keck and Mithouard (C-267/91 and C-268/91), affirming that neutral rules can still restrict market access.
• Member States must carefully assess the impact of regulations on intra-EU trade and pursue less restrictive means where possible.

Conclusion

The CJEU held that national rules, even if non-discriminatory and concerned with selling arrangements, fall within Article 34 TFEU if they hinder market access for goods from other Member States; such restrictions may only be justified if they are proportionate and necessary, reinforcing the importance of the free movement of goods and mutual recognition within the single market.