4.2 Problems with Restrictions Formula.
There is little to choose between Säger formula and that based on obstacles, and in cases such as Kraus, Schindler, and Kranemann the Court used both.
Problem 1:: Vague terminology. E.g in Carpenter, what was te obstacle that deterred Mr C from exercising his freedom to provide cross border services? – the separation of husband and wife which would eb detrimental to their family life, or the emotional distress? .. Some cases come close to saying that mere existence of national rule = restriction. This was similar as the Dentist Calgary
Problem 2: It makes no reference to size or scale of impediment: Graf indicates we need more than just remote impediment, in most cases it still takes very little to engage Treaties, e.g. Bosal, court found breach of art 49 because Dutch tax rule might “dissuade” parent company from carrying out its activities through intermediary est in another Member State. This decision cost the Dutch treasury millions.
Problem 3: Courts inability to deal with justifications that are of political/social policy nature. Demonstrated by facts of Viking. The one with reflagging the ship in Estonia to pay the seamen lower wages.(p 259). In United Pan Europe, however, Court took a more deferential approach. Diverging case law generates unpredictability