Article 34: Quantitive restriction on imports and all measures having equivalent effect shall be prohibited between member states (Article 35
makes the same restrictions for exports)
Goods: ‘valued in money’ and so are ‘capable of forming the basis of commercial transactions’ = wide definition by ECJ (Art Treasures case)
Other ways TFEU seeks to remove obstacles:
• Art. 28-30: creating a customs union so no custom duties can be charged when goods are imported
• Art. 110: prohibiting discriminatory taxation - MS can establish their own internal tax system given it does not discriminate against imported goods
(not on course)
• Art. 34: eliminating non-financial restrictions by prohibiting quantitive restrictions and measures equivalent to a quantitive restriction(focus of
the course)
1) Is the restriction a state measure or selling arrangement?
State Measure
Pure Selling Arrangement (Keck)
*for prohibitions to apply it has to be a state measure
*PSA will not come under the Dassonville definition of MEQR
State measure (Buy Irish): *Art. 34/35 will not apply to laws on PSA, given:
• Measures do not need to be binding • Definition: Any trading rule that regulates how/when/where
• The potential effect of the measure is what is important, not the actual effect goods can be sold/marketed/advertised.
• Buy Irish case: public subsidy + state controlled the private company that • Applies to all traders operating in national territories
managed the campaign to promote Irish goods = MEQR • Affects domestic and foreign goods the same way
◦ A symbol was attached to goods indicating Irish origin • Keck: does the measure apply equally in law and in fact
◦ Scheme was not actually successful because during the time imports
rose - irrelevant to ECJ Examples of PSA:
◦ Compare to: Apple and Pear Development Council v Lewis = commission • Shop opening hours or days (Punta Casa)
held that MS could create a specialised national product group to • Selling items as a loss leader (Keck)
research and give technical advice given no attempt was made to entice • Where goods must be sold (Commission v Greece - baby milk
consumers only sold in pharmacies)
• Where there is a degree of state involvement it is likely that it can be • What goods can be advertised where (Hunermund - pharmacy
challenged under Art. 34 goods could not be advertised outside pharmacies)
• What goods cannot be advertised (Leclerc - ban on imported
and domestic fuel adverts on TV - effected both in the same
Quantitive Restriction (QR): way)
• Measures which amount to a total or partial restraint of imports, exports or
goods in transit (Geddo) Not PSA if it in fact does effect imports (practical effect):
◦ An outright ban imposed by MS • Ban on alcohol in magazines and radio was an MEQR (Gourmet
‣ British Beef case: post BSE (mad cow disease) EU banned British Intl - although indistinctly applicable, without advertising of
beef -> lifted it in 1999 -> France maintained ban = breach of Art. foreign goods locals were more likely to buy from familiar
34 domestic products)
◦ a quota system • Requirement to have a permanent local base was an MEQR
(Schutzverbrand - mobile shops needed local base)
Measures Equivalent to Quantitive Restrictions (MEQR): • Measures relating to the characteristics of the products are
• All tradings rules enacted by a MS which are capable of hindering, directly or never PSA (Clinique; Mars Ice Cream)
indirect, actually or potentially, intra-community trade (Dassonville)
◦ Wide scope = hindering broad term These non-PSA would need to be further analysed
◦ Does not actually have to effect = potential to is sufficient
• Examples:
◦ UHT Milk: requirement for a license to import milk which increased delay
for importers + requirement that milk had to be repackaged in the UK =
MEQR
◦ Irish Souvenirs: requirement that foreign made Irish souvenirs had to If MEQR is indistinctly
have their country of origin printed on theme created added expense applicable always check
◦ Origin Marketing: country of origin marking requirement meant customers if it is an mere selling
were more likely to buy UK goods arrangement
◦ Commission v France (Angry Farmers): long term failure of the gov to
stop protestors blocking roads and destroying goods was held to be a
MEQR
Mutual Recognition (2nd Cassis 2) Distinctly or indistinctly applicable?
Principle)
Each member state should Distinctly Indistinctly
recognise the legality of each
other’s products - ‘if you accept *measures that only apply to *measure that apply to all products,
our products we will accept imported goods: Irish Souvenirs regardless of national origin: UHT Milk
yours’ case only applied rule to imported case required all milk to be repackaged
goods in the UK in order to be sold - but this
New way of setting EU-wide effected imported goods more.
standards because harmonisation Only justifiable by treaty exceptions
directives were too slow Can be justified by Treaty exceptions
and Cassis.
makes the same restrictions for exports)
Goods: ‘valued in money’ and so are ‘capable of forming the basis of commercial transactions’ = wide definition by ECJ (Art Treasures case)
Other ways TFEU seeks to remove obstacles:
• Art. 28-30: creating a customs union so no custom duties can be charged when goods are imported
• Art. 110: prohibiting discriminatory taxation - MS can establish their own internal tax system given it does not discriminate against imported goods
(not on course)
• Art. 34: eliminating non-financial restrictions by prohibiting quantitive restrictions and measures equivalent to a quantitive restriction(focus of
the course)
1) Is the restriction a state measure or selling arrangement?
State Measure
Pure Selling Arrangement (Keck)
*for prohibitions to apply it has to be a state measure
*PSA will not come under the Dassonville definition of MEQR
State measure (Buy Irish): *Art. 34/35 will not apply to laws on PSA, given:
• Measures do not need to be binding • Definition: Any trading rule that regulates how/when/where
• The potential effect of the measure is what is important, not the actual effect goods can be sold/marketed/advertised.
• Buy Irish case: public subsidy + state controlled the private company that • Applies to all traders operating in national territories
managed the campaign to promote Irish goods = MEQR • Affects domestic and foreign goods the same way
◦ A symbol was attached to goods indicating Irish origin • Keck: does the measure apply equally in law and in fact
◦ Scheme was not actually successful because during the time imports
rose - irrelevant to ECJ Examples of PSA:
◦ Compare to: Apple and Pear Development Council v Lewis = commission • Shop opening hours or days (Punta Casa)
held that MS could create a specialised national product group to • Selling items as a loss leader (Keck)
research and give technical advice given no attempt was made to entice • Where goods must be sold (Commission v Greece - baby milk
consumers only sold in pharmacies)
• Where there is a degree of state involvement it is likely that it can be • What goods can be advertised where (Hunermund - pharmacy
challenged under Art. 34 goods could not be advertised outside pharmacies)
• What goods cannot be advertised (Leclerc - ban on imported
and domestic fuel adverts on TV - effected both in the same
Quantitive Restriction (QR): way)
• Measures which amount to a total or partial restraint of imports, exports or
goods in transit (Geddo) Not PSA if it in fact does effect imports (practical effect):
◦ An outright ban imposed by MS • Ban on alcohol in magazines and radio was an MEQR (Gourmet
‣ British Beef case: post BSE (mad cow disease) EU banned British Intl - although indistinctly applicable, without advertising of
beef -> lifted it in 1999 -> France maintained ban = breach of Art. foreign goods locals were more likely to buy from familiar
34 domestic products)
◦ a quota system • Requirement to have a permanent local base was an MEQR
(Schutzverbrand - mobile shops needed local base)
Measures Equivalent to Quantitive Restrictions (MEQR): • Measures relating to the characteristics of the products are
• All tradings rules enacted by a MS which are capable of hindering, directly or never PSA (Clinique; Mars Ice Cream)
indirect, actually or potentially, intra-community trade (Dassonville)
◦ Wide scope = hindering broad term These non-PSA would need to be further analysed
◦ Does not actually have to effect = potential to is sufficient
• Examples:
◦ UHT Milk: requirement for a license to import milk which increased delay
for importers + requirement that milk had to be repackaged in the UK =
MEQR
◦ Irish Souvenirs: requirement that foreign made Irish souvenirs had to If MEQR is indistinctly
have their country of origin printed on theme created added expense applicable always check
◦ Origin Marketing: country of origin marking requirement meant customers if it is an mere selling
were more likely to buy UK goods arrangement
◦ Commission v France (Angry Farmers): long term failure of the gov to
stop protestors blocking roads and destroying goods was held to be a
MEQR
Mutual Recognition (2nd Cassis 2) Distinctly or indistinctly applicable?
Principle)
Each member state should Distinctly Indistinctly
recognise the legality of each
other’s products - ‘if you accept *measures that only apply to *measure that apply to all products,
our products we will accept imported goods: Irish Souvenirs regardless of national origin: UHT Milk
yours’ case only applied rule to imported case required all milk to be repackaged
goods in the UK in order to be sold - but this
New way of setting EU-wide effected imported goods more.
standards because harmonisation Only justifiable by treaty exceptions
directives were too slow Can be justified by Treaty exceptions
and Cassis.
