Developments since the Danish bottle case

At the time when the Court of Justice gave its judgment in the Danish bottle case it seemed rather clear that a distinction should be made between on the one hand the exceptions set out in Article 36 TFEU, primarily those relating to protection of life and health of humans, animals, and plants, and on the other hand the exception ^[1]

relating to protection of the environment in a broader sense based on the so-called Cassis de Dijon line of case law. In the first case a distinction based on origin was allowed as long as it was not arbitrary, whereas the exceptions formulated by the Court itself were only applicable to national measures that did not distinguish based on origin. Subsequently this situation has gradually changed through a series of judgments in which the Court of Justice has accepted measures that distinguish based on origin outside the ambit of Article 36, and sometimes also have bundled protection of human health and the environment together without any distinction. However, the Court has persistently avoided setting out a new principle, which has made the relevant case law look inconsistent or even obscure. There has also been a lack of clarity regarding what right a Member State has to define its own level of environmental or health protection. In the following sections we will briefly outline the development in these areas and try to provide as clear a picture as possible of the current state of the law with respect to the most significant factors for assessing compatibility of national measures with the principle of free movement of goods.

• [1] Ibid, para 22. 59 Ibid, para 16. 6o Ibid, para 13. 6i Ibid, para 15. 62 Ibid, para 20. Non-approved containers, on the other hand, could be returned only to the retailerwho sold the beverages, since it was impossible to set up a comprehensive system for those containers as well. 63 Ibid, para 21.