Chalmers Et Al Ch.18 Free Movement MEQR

18
The Free Movement of Goods
CONTENTS
1 Introduction
2 General Definition of a Measure
Equivalent to a Quantitative Restriction
(i) Dassonville
(ii) Limits of the notion of an MEQR
(iii) Form of an MEQR
(iv) De minimis
(v) The internal situation
(vi) Article 34 TFEU and private actors
(ii) Mandatory requirements

(a) Consumer protection
(b) Protection of the environment
4 Selling Arrangements and Keck
(i) The notion of a selling arrangement
(ii) Unequal effect of selling arrangements
5 Article 35 TFEU and Restrictions on
Exports
Further reading
3 Product Standards and Cassis de Dijon

(i) Mutual recognition
1 INTRODUCTION
Article 34 TFEU prohibits restrictions on the import of goods from other Member States. Case
law has divided measures which may be restrictions into three categories, governed by three
important cases, Dassonville, Cassis de Dijon and Keck. The structure of the chapter reflects
this.
Section 2 discusses the umbrella notion of a restriction on imports, which is provided in
Dassonville. This case established a very broad scope to Article 34, applying to any measure
which impedes imports, however that effect is achieved. A recent case, Alfa Vita, even suggests that if a measure results in reduced sales of certain goods this may be enough to bring
it within Article 34.
Section 3 discusses the application of Article 34 to product rules. The basis for this application is provided in Cassis de Dijon. Product rules are rules which require producers to change
some aspect of the physical product or its packaging before it may be sold. Examples are rules
744
745 The Free Movement of Goods
which only allow the sale of foodstuffs made in certain ways, or which limit the kinds of containers that can be used for soft drinks. The Court of Justice held in Cassis de Dijon that even
if these rules apply equally to imports and domestic products, they are nevertheless restrictions
on imports.
(a) The reason for the ruling was that in practice it is very difficult to export to other
Member States if one has to amend products to adapt to the different rules in each state.
(b) The judgment created a principle of mutual recognition of the adequacy of other
Member State laws. It established that goods should only be subject to the regulation of
their country of production. The principles of country of origin regulation and mutual
recognition are now applied throughout free movement law.
(c) It is possible to derogate from mutual recognition for legitimate and proportionate
reasons, but this is strictly policed. It is often argued, for example, that permitting
foreign products to be sold when these do not conform to national rules and expectations
undermines consumer protection. However, the Court usually finds that labelling
provides the consumer with sufficient information and protection, and is a lesser
hindrance to trade.
Section 4 discusses Keck and the idea of selling arrangements. These are rules which regulate the way products are sold. Examples are advertising and rules on shop opening times. The
Court held in Keck that these are generally not restrictions on imports, as long as they do not
have a greater effect on imports than on domestic products. States may therefore regulate selling arrangements however they like, so long as the effect on imports and domestic products
is the same. Keck is criticised by many because even if selling arrangements do not have an
unequal effect, they may still have the effect of hindering trade, by making marketing more
difficult.
Some principles are common to all categories of restrictions on imports.
(a) Restrictions on imports which discriminate directly between national and foreign goods
may only be saved by Article 36 TFEU. This is discussed in Chapter 21.
(b) Restrictions on imports which are equally applicable (equal on their face, although they
may have some unequal effect) will not be prohibited if they are necessary for some
legitimate public interest objective (often called a mandatory requirement) and are
proportionate.
(c) Article 34 only applies insofar as measures affect imports. If states wish to burden
domestic producers with heavy regulation this is a matter of purely national law.
However, in exceptional situations stricter regulation of domestic production may
actually give it a reputational advantage, and so be a hindrance to imports.
(d) Article 34 also only applies to public measures, not private ones. However, the notion
of public catches all bodies and measures in which the state is implicated or has control,
even if the measure is apparently implemented by a private organisation. Moreover, the
state has a positive obligation to prevent private parties from obstructing free movement,
for example where demonstrators block roads. This may entail sensitive balancing
between free movement and fundamental rights to free expression and to demonstrate.
Section 5 discusses Article 35 TFEU, which prohibits restrictions on exports. It has a different
logic from Article 34. It only applies to measures which have some greater negative effect on
746 European Union Law
export sales than on domestic sales. As with Article 34, if these measures are equally applicable
they may be saved if they serve a legitimate aim in a proportionate way.
2 GENERAL DEFINITION OF A MEASURE EQUIVALENT

TO A QUANTITATIVE RESTRICTION
Article 34 TFEU provides that:
Quantitative restrictions on imports and all measures having equivalent effect shall be
prohibited between Member States.
A quantitative restriction is a limit on the amount of imports.1 That limit may be constructed
in various ways, by reference to value, or physical quantity, or some other factor. Examples
could be a rule permitting only so many cars to be imported per year or limiting imports of
cheese to a percentage of total domestic sales. Quantitative restrictions do not arise often any
more: their prohibition is too clear.
The second part of Article 34 is rather more important in practice. This prohibits measures
which do not actually set a limit to imports, but have the same effect as such a limit. These
measures of equivalent effect (MEQRs), as they are often called, result in imports being reduced just as if there was in fact an explicit limit.
The case law on Article 34 consists of attempts to define and explain what constitutes an
MEQR. The problems of such a definition are twofold. First, an MEQR, by definition, produces
its import-reducing effects by a more or less indirect path. That can make causation difficult to
establish. The first problem is therefore to know, as a matter of fact, which measures actually do
result in imports being reduced or are likely to do so. In some cases it may be obvious, but other
cases are difficult. The Court of Justice has dealt with this by drawing broad-brush distinctions
of convenience, as will be seen below in the discussions of Dassonville and Keck.2 The second
problem is to decide whether Article 34 is about combating rules with a protectionist effect,
or about deregulating economic activity.3 Many measures restrict or reduce economic activity
generally: tax rises, rules on transport and advertising, labour regulation. Such measures are
likely, therefore, to reduce imports too. However, they do not specifically reduce imports. They
do not have any effect on imports that they do not also have on domestic production. On the
whole, as will be seen below, the Court excludes such measures from Article 34, although the
position is far from entirely clear and recent cases suggest a rethinking may be under way.4
In the current state of the law, measures potentially within Article 34 can be divided into
three groups, each falling within a distinct legal regime. The most recent group consists of measures which concern the way goods are marketed or sold. Whether or not this type of measure
is prohibited is decided according to the principles laid down in Keck, discussed later in this
chapter.5 Perhaps the most important group in practice consists of measures concerning the
way products are produced or packaged their physical specifications. Whether or not these
1
2
4
5
See Case 2/73 Riseria Luigi Geddo v Ente Nazionale Risi [1973] ECR 865.
Case 8/74 Procureur du Roi v Benot and Gustave Dassonville [1974] ECR 837; Joined Cases C-267/91 and
C-268/91 Keck and Mithouard [1993] ECR I-6097.
See Chapter 16; Advocate General Tesauro in Case C-292/02 Hnermund v Landesapotheker Baden-Wrttemburg
[1994] ECR I-6787.
See pp. 74952.
See pp. 77380.
measures contravene Article 34 is decided according to the principles laid down in Cassis de
Dijon, also discussed below.6 The third group consists of measures which affect imports or
trade in some way, but do not fall within the other groups. These are measures which cannot
be easily captured by the Cassis definition of a product rule or the Keck definition of a selling
arrangement. The legality of this third group of measures is decided according to the principles
in Dassonville.7 In fact, this is the oldest of the three central goods cases, and is the case which
provides the general umbrella definition of an MEQR. In the years immediately after it was decided, it was the starting point for all questions of free movement of goods. However, now that
the specialised sub-regimes of Cassis and Keck are well established, Dassonville has become
residual in practice, if not unimportant.
(i) Dassonville
Mr Dassonville was a Belgian trader who bought Scotch whisky in France and imported it
to Belgium for sale there. The reason why he did this was that whisky was much cheaper in
France than in Belgium. The French, at the time of the case, did not have as high a disposable
income as Belgians, and could not be persuaded to pay as much for whisky. Moreover, while
whisky was a fairly well-established tipple in Belgium, it was less so in France, where it had
to compete against domestic spirits and aperitifs. A common technique used to enter a new
market is to sell the product at a low price initially, and whisky producers and retailers did
precisely this. The hope was, of course, that eventually the French would come to love whisky
and the price could be raised, and large profits finally made.
However, such market-specific pricing is made very difficult by Article 34, since what is
called parallel trading quickly reduces the price differences. People like Mr Dassonville go and
buy the goods in the cheap market and sell in the expensive one, until the prices converge.
This is possible because, given Article 34, there should be no obstacles to the trading of goods
between states.
Nevertheless, Mr Dassonville encountered a problem in the form of a Belgian law on designations of origin. The law prohibited the import of products bearing such a designation of
origin without a certificate from the authorities of the state of production to prove that this
designation was correct. Thus, whisky labelled as Scotch (from Scotland) could not be imported
to Belgium without a certificate of origin from the British customs.
For retailers who imported their whisky directly from the United Kingdom this was not a
problem, since the whisky would be delivered with the appropriate certificate if desired. However, such certificates were typically removed at the point of importation, and were no longer
attached to the whisky by the time it was on sale within the country. Thus, when Mr Dassonville bought his whisky for a good price in France it came without a certificate. Moreover, it
was difficult for him to obtain such a certificate since the goods had already left the United
Kingdom. He was therefore in possession of Scotch whisky which could not be lawfully sold in
Belgium according to Belgian law. He claimed that this law was an MEQR, and in the Courts
judgment it gave what continues to be the standard description of what an MEQR is.
6
Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung f r Branntwein (Cassis de Dijon) [1979] ECR 649,
discussed at pp. 760 et seq.
Case 2/73 Riseria Luigi Geddo v Ente Nazionale Risi [1973] ECR 865.
Case 8/74 Procureur du Roi v Benot and Gustave Dassonville [1974] ECR 837
5. All trading rules enacted by Member States which are capable of hindering, directly or indirectly,
actually or potentially, intra-community trade are to be considered as measures having an effect
equivalent to quantitative restrictions.
6. In the absence of a community system guaranteeing for consumers the authenticity of a products
designation of origin, if a Member State takes measures to prevent unfair practices in this connection,
it is however subject to the condition that these measures should be reasonable and that the means
of proof required should not act as a hindrance to trade between Member States and should, in
consequence, be accessible to all community nationals.
7. Even without having to examine whether or not such measures are covered by Article [34 TFEU],
they must not, in any case, by virtue of the principle expressed in the second sentence of that article,
constitute a means of arbitrary discrimination or a disguised restriction on trade between Member
States.
8. That may be the case with formalities, required by a Member State for the purpose of proving the
origin of a product, which only direct importers are really in a position to satisfy without facing serious
difficulties.
9. Consequently, the requirement by a Member State of a certificate of authenticity which is less easily
obtainable by importers of an authentic product which has been put into free circulation in a regular
manner in another Member State than by importers of the same product coming directly from the
country of origin constitutes a measure having an effect equivalent to a quantitative restriction as
prohibited by the Treaty.
There are three elements of this judgment worth noting: first, the definition in paragraph 5,
which continues to be cited in almost unchanged terms, although with the words all trading
rules replaced in some judgments by the words all rules or all measures.8 This definition is
very broad. It extends an MEQR to include measures which have not yet had any actual effect,
but may potentially do so, as well as those whose effect on trade is indirect. Article 34 applies
to any measure which may somehow hinder interstate trade. Yet, the second aspect of the
judgment mitigates this. The Court appears to accept in paragraph 6 that even measures which
might fall within its own definition may be permitted if they are reasonable. This notion was
later developed and brought to fruition in Cassis de Dijon. As a result, even though paragraph
5 of the judgment establishes a broad scope of supervision of Article 34, some of the measures
caught may in fact ultimately escape its prohibition.
Secondly, the breadth of the definition can then be understood as an establishment of jurisdiction. By making Article 34 broad, the Court is granting itself equally broad powers to
supervise national measures via the preliminary reference procedure, even if in some cases
it will find those measures compatible with the Treaty. This was particularly important in a
time where the internal market was in its infancy and national protectionist traditions were
See e.g. Case C-88/07 Commission v Spain, Judgment of 5 March 2009; Case C-319/05 Commission v Germany
[2007] ECR I-9811; Joined Cases C-158/04 and C-159/04 Alfa Vita v Elliniko Dimosio and Nomarchiaki
Aftodioikisi Ioanninon [2006] ECR I-8135; Case C-383/97 Van der Laan [1999] ECR I-731.
well-entrenched, while national judges were still often unfamiliar with EU law. Thirdly, one
may note the emphasis in paragraphs 7 to 9 on discrimination. There is no mention of this in
the paragraph 5 definition, and yet the Belgian rule is finally ruled incompatible not because
it makes all imports difficult, but because it makes imports from France harder than those
from the United Kingdom (paragraph 9). The traditional view of free trade agreements, and of
Article 34, that they are fundamentally about equal treatment of goods from different states,9
is clearly influential here.
(ii) Limits of the notion of an MEQR

The situations to which Dassonville has been applied are diverse. Examples include government
campaigns encouraging consumers to purchase domestic goods,10 rules requiring electricity
suppliers to purchase a percentage of their electricity from domestic wind farms,11 obligations
on petrol importers to maintain a reserve store,12 requirements to obtain a licence to import
certain goods,13 even where the licence is a formality granted as of right,14 public tenders requiring goods made according to national standards15 and procedures whereby alcoholic drinks
could only be imported via certain state-controlled channels.16 The most important common
factor which these measures share is simply that in practice they hinder imports, or are likely
to do so.17 Dassonville is usually applied in a very pragmatic and non-theoretical way.
An additional factor linking most measures which the Court has found to be MEQRs is that
they have some unequal effect: either they discriminate against imported products directly, or
they create some specific hindrance to cross-border trade which they do not create for internal
trade.18 Even measures which seem at first glance to have equal effects often turn out to have
some specifically import-restricting effect upon closer examination. In Commission v Austria,
an Austrian rule prohibiting heavy goods traffic from an alpine motorway, on environmental
grounds, was found to contravene Article 34.19 The rule applied without reference to nationality, but the Commission argued, without being contradicted, that most of the heavy trucks on
that road were in fact transiting Austria, and were likely to be foreign or to be carrying foreign
goods, while local freight traffic tended to use smaller vehicles.
Thus, although the definition in Dassonville does not make protectionism or discrimination
part of the definition of an MEQR, in practice the Court has seemed reluctant to extend Article
34 to measures which have no specific cross-border impact, but just reduce trade or economic
activity generally. However, several very recent cases call this into question, and suggest that
9
10
11
12
13
14
15
16
17
18
19
See G. de Brca, Unpacking the Concept of Discrimination in EC and International Trade Law in C. Barnard and
J. Scott (eds.), The Law of the European Single Market (Oxford, Hart, 2002) 181.
Case 249/81 Commission v Ireland [1982] ECR 4005; Case 207/83 Commission v United Kingdom (marks of
origin) [1985] ECR 1201.
Case C-379/98 PreussenElektra [2001] ECR I-2099.
Case C-398/98 Commission v Greece [2001] ECR I-7915.
Case C-54/05 Commission v Finland [2007] ECR I-2473.
Case C-434/04 Ahokkainen [2006] ECR I-9171.
Case 45/87 Commission v Ireland [1988] ECR 4929.
Case C-170/04 Klas Rosengren and Others v Riksklagaren [2007] ECR I-4071.
Tax measures are generally excluded from Article 34; see Case C-383/01 De Danske Bilimportrer [2003] ECR
I-6065; Case 47/88 Commission v Denmark [1990] ECR 4509.
See G. Davies, Nationality Discrimination in the European Internal Market (The Hague, Kluwer Law International,
2003).
Case C-320/03 Commission v Austria [2005] ECR I-9871.
the Court may be letting go of this implicit limit, applying Article 34 whenever access to a
market is hindered.
One group of cases have involved rules concerning the use of goods. In Mickelsson and
Roos, the Finnish government prohibited the use of jet-skis except on designated waterways,
and then did not designate any waterways, so that in practice jet-skis could not be used in
Finland.20 In Commission v Portugal, a Portuguese measure was successfully challenged which
prohibited sticking tinted plastic to car windows to turn them into tinted windows.21 Then in
Commission v Italy, a challenge was brought to Italian rules which prohibited the towing of a
trailer behind a motorcycle.22
In these three cases there was no outright prohibition on the importation or sale of a product,
but a measure which indirectly achieved more or less the same effect. If something cannot be
used (jet-skis, tinted window stickers or motorcycle trailers), then in practice trying to import
and sell that product will be a hopeless venture. It will not be illegal, but no one will want to
buy it.
Case C-110/05 Commission v Italy, Judgment of 10 February 2009

33. It should be recalled that, according to settled case-law, all trading rules enacted by Member States
which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are
to be considered as measures having an effect equivalent to quantitative restrictions and are, on that
basis, prohibited by Article [34 TFEU].
34. It is also apparent from settled case-law that Article [34 TFEU] reflects the obligation to respect the
principles of non-discrimination and of mutual recognition of products lawfully manufactured and
marketed in other Member States, as well as the principle of ensuring free access of Community
products to national markets . . . .
55. In its reply to the Courts written question, the Commission claimed, without being contradicted by the
Italian Republic, that, in the case of trailers specially designed for motorcycles, the possibilities for their
use other than with motorcycles are very limited. It considers that, although it is not inconceivable that
they could, in certain circumstances, be towed by other vehicles, in particular, by automobiles, such use
is inappropriate and remains at least insignificant, if not hypothetical.
56. It should be noted in that regard that a prohibition on the use of a product in the territory of a Member
State has a considerable influence on the behaviour of consumers, which, in its turn, affects the access
of that product to the market of that Member State.
57. Consumers, knowing that they are not permitted to use their motorcycle with a trailer specially
designed for it, have practically no interest in buying such a trailer. Thus, Article 56 of the Highway
Code prevents a demand from existing in the market at issue for such trailers and therefore hinders
their importation.
58. It follows that the prohibition laid down in Article 56 of the Highway Code, to the extent that its effect
is to hinder access to the Italian market for trailers which are specially designed for motorcycles and
are lawfully produced and marketed in Member States other than the Italian Republic, constitutes a
measure having equivalent effect to quantitative restrictions on imports within the meaning of Article
[34 TFEU], unless it can be justified objectively.
20
21
22
Case C-142/05 klagaren v Mickelsson and Roos, Judgment of 4 June 2009.

Case C-265/06 Commission v Portugal [2008] ECR I-2245.
Case C-110/05 Commission v Italy, Judgment of 10 February 2009.
It is possible to argue that rules on use do have an unequal effect. In practice, domestic
producers are unlikely to manufacture goods which cannot be used in their state. They will be
conditioned by their local legal environment. Thus, the producers whose goods are affected by
the use ban will almost always be foreign: it will be the producer in state X, who makes something that the people of X enjoy using, and who wants to try and convert the people of state
Y, but discovers that the rules of Y prevent him from doing so. This argument is particularly
relevant because all the cases concerned an effective ban on the use of a product, not simply a
restriction. It remains to be seen whether, for example, a restriction on the use of cars to those
who possess a licence, which also limits sales of cars and therefore of imports, would be found
to be an MEQR, and it is suggested that this is unlikely.
However, it is notable that in the extract above the Court finds that Article 34 requires equal
treatment and market access, as if the latter is more than an interpretation of the former, but an
extension of it. Whether or not the measure in fact has an unequal effect, there is no suggestion in the judgment that the Court considers this relevant. The Courts reasoning is simply that
because these measures effectively prevent sale of the goods, they effectively prevent imports,
and are therefore MEQRs.
Alfa Vita goes a step further, applying Article 34 to a measure which did not prevent
sales, but merely diminished them. This case concerned Greek regulation of the operation of
bakeries.23 Greek law required all bakeries to have an operating licence, which was granted
only if they complied with a number of physical requirements, such as having an area for
kneading bread and a flour store. A number of supermarkets were prosecuted because they had
bakery sections, but did not comply with these norms. Their defence was that they did not in
fact make their own bread products, but bought frozen dough, or frozen part-cooked bread,
which then simply had to be placed in the ovens for a while to complete its baking process.
Thus, the bakery requirements were completely inappropriate to their activities, and imposed
an unreasonable cost on their business. The sale of bake-off bread products was burdened
and therefore inhibited.
The Court agreed entirely, finding the rules to be an MEQR. They inhibited the sale of a
product which might be imported. However, it did not address the question whether these
bakery requirements had any import-specific effect, and there was no discussion of whether
the bake-off products were in fact imported or not. It is possible to argue that bread baked on
the premises is inevitably a local product, whereas frozen bake-off products may be domestically produced but may equally be imported. Thus rules which favour the former at the expense
of the latter will tend to support local products and discourage possible imports. However, the
Court did not emphasise this possible inequality. By contrast, its reasoning was merely that by
imposing an unreasonable cost on the sale of a product, the rules would inhibit or diminish its
sale and therefore also its import.
The judgments in the usage cases and Alfa Vita therefore suggest that it is not necessary to
show unequal effect to engage Article 34, although the fact that the rules in these cases probably did hit imports particularly hard must temper this conclusion somewhat. Moreover, while
the usage cases concern measures which effectively prevent sales entirely, Alfa Vita concerns
a measure which merely inhibited sales by imposing a cost burden. If the fact that a measure
23
Case C-188/04 Alfa Vita v Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] ECR I-8135.
has a potential sales-reducing effect is enough to make it an MEQR, then Article 34 is indeed
broad. It may also be noted that Alfa Vita is in tension with another pillar of the case law,
Keck, a matter discussed further below.24
It remains to be seen where the Court will go. The extension of Article 34 to any measure
reducing sales, even without unequal effect, would enable its application to a huge range of
measures, and potentially raise constitutional problems.25 It would require some new limit,
for example a condition that a measure have a sufficiently direct effect, or that its impact on
sales be significant or substantial.26 As yet the Court has not developed such concepts, and
they are sufficiently vague that they might present problems of justiciability.27 There are therefore good reasons to be sceptical that a true market access approach to Article 34 will ever
be implemented, or should be. However, Commission v Italy was a Grand Chamber judgment,
and it is hard to believe that the way the judgment was phrased was not a deliberate choice,
so perhaps a message is being sent that Article 34 is about to undergo another expansionary
phase.
(iii) Form of an MEQR

The form of an MEQR has never been something of great significance. The Court looks at the
effects, and does not limit Article 34 to any particular legal type of measure. National laws
and regulations may be caught, but so may administrative practices without a formal legal
basis.28 Most notably, in the recent AGM case, the Court found a mere pronouncement by a
public official to comprise an MEQR.29 AGM, an Italian company, exported lifting machines to
Finland. There was some doubt in Finland as to whether they complied with the safety requirements of Finnish law and of the relevant European standards. After negotiations with AGM,
which agreed to make some alterations to the machines, the Finnish government decided that
no further action was necessary. However, there were clearly differences of opinion within
the safety authorities, because the safety official who had initially investigated the machines,
Mr Lehtinen, went on television in an interview and declared that the machines were dangerous, and did not comply with the relevant Directive. A storm of media interest followed, with
newspaper reports about treacherous vehicle lifts, concern from the Finnish metalworkers
union, and so on. Inevitably, sales of AGM machines were badly affected.
The Court was asked to consider whether Mr Lehtinens statements could be an MEQR. It
took into account the fact that he had initially been authorised by his superiors to appear in
the interview, but that he was later removed from the case and disciplined for making public
24
25
26
27
28
29
See p. 775.
See J. Snell, Free Movement of Goods and Services in EC Law (Oxford, Oxford University Press, 2002); G. Davies,
Discrimination is Better than Market Access in Nationality Discrimination in the European Internal Market (The
Hague, Kluwer Law International, 2003) 93.
See S. Weatherill, After Keck: Some Thoughts on How to Clarify the Clarification (1996) 33 CMLRev. 885; C.
Barnard, Fitting the Remaining Pieces into the Goods and Persons Jigsaw (2001) 26 ELRev. 35; A. Tryfonidou,
Was Keck a Half-baked Solution After All? (2007) 34 LIEI 167.
See Davies, above n. 25.
Case 21/84 Commission v France [1985] ECR 1355; Case C-192/01 Commission v Denmark [2003] ECR I-9693;
Case C-212/03 Commission v France [2005] ECR I-4213.
Case C-470/03 AGM-COS.MET Srl v Suomen valtio and Tarmo Lehtinen [2007] ECR I-2749; see N. Reich, AGMCOS.MET or Who is Protected by EC Safety Regulation? (2008) 31 ELRev. 85; S. De Vries, Annotation of AGM
(2008) 45 CMLRev. 569.
statements which did not conform to the official position. The extent to which his statements
should therefore be attributed to the state was therefore arguable.
The discussion in the case took place in the context of article 4(1) of the relevant harmonisation Directive. That article provided that machinery complying with the Directive
should benefit from free movement. It essentially translates Article 34 TFEU to this particular
context.
AGM-COS.MET Srl v Suomen Valtio and Tarmo Lehtinen [2007] ECR I-2749
55 . . . the referring courts first question should be reformulated so that the court essentially asks
whether it is possible to classify the opinions expressed publicly by Mr Lehtinen as obstacles to the
free movement of goods for the purposes of Article 4(1) of the Directive, attributable to the Finnish
State.
56. Whether the statements of an official are attributable to the State depends in particular on how those
statements may have been perceived by the persons to whom they were addressed.
57. The decisive factor for attributing the statements of an official to the State is whether the persons
to whom the statements are addressed can reasonably suppose, in the given context, that they are
positions taken by the official with the authority of his office.
58. In this respect, it is for the national court to assess in particular whether:
the official has authority generally within the sector in question;
the official sends out his statements in writing under the official letterhead of the competent
department;
the official gives television interviews on his departments premises;
the official does not indicate that his statements are personal or that they differ from the official
position of the competent department; and
the competent State departments do not take the necessary steps as soon as possible to dispel the
impression on the part of the persons to whom the officials statements are addressed that they are
official positions taken by the State.
59. It remains to examine whether the statements at issue in the main proceedings, on the assumption that
they are attributable to the Finnish State, infringe Article 4(1) of the Directive.
60. Any measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade
is to be considered as an obstacle. That principle applies also where the interpretation of Article 4(1) of
the Directive is concerned . . . .
65. Since the statements at issue described the vehicle lifts, in various media and in widely circulated
reports, as contrary to standard EN 1493:1998 and dangerous, they are capable of hindering, at least
indirectly and potentially, the placing on the market of the machinery.
66. In the light of the above considerations, the answer to Question 1 must be that statements which, by
reason of their form and circumstances, give the persons to whom they are addressed the impression that
they are official positions taken by the State, not personal opinions of the official, are attributable to the
State. The decisive factor for the statements of an official to be attributed to the State is whether the
persons to whom those statements are addressed can reasonably suppose, in the given context, that they
are positions taken by the official with the authority of his office. To the extent that they are attributable
to the State, statements by an official describing machinery certified as conforming to the Directive as
contrary to the relevant harmonised standard and dangerous thus constitute a breach of Article 4(1) of
the Directive.
It is long established that if the state were to campaign in favour of national products, using appeals to patriotism or chauvinism, or criticising foreign products, this would contravene Article 34.30
It seems, following AGM, that the same principles apply to statements by individual officials where
these are reasonably attributed to the state by their addressees, something which will encourage
official organs to keep an even stricter rein on their functionaries. The Court went on to find that
the normal principles of state liability applied, so that it was open to the national court to find the
state liable to compensate AGM. EU law also permitted, but did not require, that officials such as
Mr Lehtinen attract personal liability for behaviour amounting to an MEQR.
Cases such as AGM beg the question whether Article 34 has a de minimis threshold. Not
every comment by a civil servant causes as much excitement as Mr Lehtinens did. One can
imagine discriminatory statements or acts by individuals or authorities that are wrongful in
principle, but simply too insignificant to merit much concern. Does Article 34 apply?
(iv) De minimis
The Courts formal position has always been that there is no de minimis for the application of
Article 34.
Joined Cases 177/82 and 178/82 Van de Haar [1984] ECR 1797
13. It must be emphasized in that connection that Article [34 TFEU] does not distinguish between measures
having an effect equivalent to quantitative restrictions according to the degree to which trade between
Member States is affected. If a national measure is capable of hindering imports it must be regarded as
a measure having an effect equivalent to a quantitative restriction, even though the hindrance is slight
and even though it is possible for imported products to be marketed in other ways.
Thus, if a measure is an MEQR within the Dassonville definition, it is not important that its
effect is in fact very small.
However, a quasi-de minimis rule is introduced by the doctrine, consistently present in the
case law on goods and on the other freedoms, that measures whose effect is too uncertain and
indirect will not be caught by the Treaty.
Case C-379/92 Peralta [1994] ECR I-3453

23. The national court enquires about the compatibility of the Italian legislation with Article [34 TFEU]
insofar as it requires Italian vessels to carry costly equipment. It asks itself whether this makes imports of
chemical products into Italy more expensive and therefore creates an obstacle prohibited by that article.
24. On this point, it is sufficient to observe that legislation like the legislation in question makes no
distinction according to the origin of the substances transported, its purpose is not to regulate trade in
goods with other Member States and the restrictive effects which it might have on the free movement
of goods are too uncertain and indirect for the obligation which it lays down to be regarded as being of
a nature to hinder trade between Member States.
30
Case 249/81 Commission v Ireland [1982] ECR 4005; Case 207/83 Commission v United Kingdom (marks of
origin) [1985] ECR 1201.
This is potentially important in the light of the recent market access cases discussed
above. In the event that Article 34 is increasingly applied in the future on the basis that
a measure has the effect of reducing sales, the rule in Peralta could provide a useful
counter-balance, preventing every tax rise or change to public transport becoming subject
to Article 34.
(v) The internal situation

Article 34 TFEU only applies to measures hindering imports. If a measure does not apply
to imports but only to domestic producers, then in general it will be outside Article 34.31
Thus, in Dassonville, the Court found that applying the origin-certificates rule to imports
was contrary to Article 34, but if the Belgian state had continued to apply that rule only
to Belgian drinks brewed in Belgium and bearing origin marks from Belgian towns or regions, this would have been of no interest to EU law. It is true that this approach can lead
to reverse discrimination, whereby EU law tolerates a situation in which domestic producers are more heavily burdened by law than importers. However, the Court is unconcerned
by this: As regards the general principle of non-discrimination, it must be observed that
community law does not apply to treatment which works to the detriment of national products as compared with imported products or to the detriment of retailers who sell national
products.32
In some, relatively unusual, circumstances even though a measure does not apply to
imports it may nevertheless create a problem or disadvantage for them and so comprise an
MEQR. Pistre concerned French law on product designations, and the particular designation mountain ham.33 Apparently ham from pigs who have lived in the mountains is often
particularly good, and so in marketing such ham, specific reference is made to its high
altitude origin. To protect the consumer, French law regulated the use of such references.
Ham could only be called mountain ham if its production complied with a number of
rules. However, in practice it was only possible to comply with these rules if the ham was
French. They were so formulated that ham even from very high places in other countries
would not comply.
Realising that this amounted to discrimination against imported goods, the French government chose not to apply the rules to imports. It was therefore possible to sell Spanish
or Scottish ham in France which bore the word mountain on the package, or reference to
a specific mountain area, without legal problems. In the case, therefore, it was not an importer, but a French producer who complained. He was being prosecuted for selling French
ham bearing the word mountain without complying with the rules associated with that
name. In his defence he challenged the legality of the French rules. The French government
claimed that since these rules did not apply to imports, Article 34 was not relevant. The
Court disagreed.
31
32
33
Case C-98/86 Mathot [1987] ECR 809.

Case 355/85 Driancourt v Cognet [1986] ECR 3231, para. 11.
Case C-321/94 Pistre [1997] ECR I-2343.
Case C-321/94 Pistre [1997] ECR I-2343

43. According to settled case-law, the prohibition laid down in Article [34 TFEU] covers all trading rules
enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially,
intra-Community trade.
44. Accordingly, whilst the application of a national measure having no actual link to the importation
of goods does not fall within the ambit of Article [34 TFEU], Article [34 TFEU] cannot be considered
inapplicable simply because all the facts of the specific case before the national court are confined to a
single Member State.
45. In such a situation, the application of the national measure may also have effects on the free movement
of goods between Member States, in particular when the measure in question facilitates the marketing of
goods of domestic origin to the detriment of imported goods. In such circumstances, the application
of the measure, even if restricted to domestic producers, in itself creates and maintains a difference of
treatment between those two categories of goods, hindering, at least potentially, intra-Community trade.
The Court found that the measure contravened Article 34 even though it only applied to
domestic products in fact precisely because it only applied to domestic products. By having
a designation with which only domestic ham could comply, French law provided a marketing
advantage to national ham over foreign ham. The mere creation of a distinction between national and foreign products may itself amount to a barrier to imports.34 This was the case even
though the importer was in fact subject to fewer requirements than the domestic producers,
and thus at first glance was advantaged rather than disadvantaged.
EU law often also applies indirectly to internal situations, via national law. Sometimes national law prohibits reverse discrimination, meaning that a court faced with internal facts, as
in Pistre, is required by national law to treat the litigant in the same way as they would were
she an importer. This means that the court needs to know what EU law would say in the hypothetical situation that the measure is applied to imports. The Court answers such questions,
because the answer is necessary for the national judge if she is to reach her decision. However,
the actual situation in question, being internal, is not within the scope of EU law.35
A variation on the internal situation is the U-turn, whereby goods are exported and then
reimported. This may simply be the result of several sales, from party to party. Sometimes
goods are traded quite extensively before reaching the final consumer. However, it may be a
deliberate construction, aimed at bringing the goods within Article 34 so that they can benefit
from EU law and be exempted from burdensome national rules. In Au Bl Vert, the Court decided that reimports must be treated as imports, unless it could be shown that the goods were
exported for the sole purpose of reimportation, in order to circumvent national legislation. This
is doctrinally quite straightforward, but raises very difficult questions of evidence.36 Where
goods are sold to a trader abroad, and then resold to a new domestic trader, it is a considerable
challenge to demonstrate that these were working together.37
34
35
36
37
See G. Davies, Consumer Protection as an Obstacle to the Free Movement of Goods (2007) 4 ERA-Forum 55.
Case C-448/98 Guimont [2000] ECR I-10663; see C. Ritter, Purely Internal Situations, Reverse Discrimination,
Guimont, Dzodzi and Article 234 (2006) 31 ELRev. 690.
Case 229/83 Association des Centres Distributeurs Leclerc v SARL Au Bl Vert [1985] ECR 1.
Case C-322/01 Deutscher Apothekerverband v DocMorris [2003] ECR I-14887.
(vi) Article 34 TFEU and private actors

The Court has consistently held that Article 34 only applies to measures taken by public bodies:
Articles [34 and 35 TFEU] concern only public measures and not the conduct of undertakings.38 This is in contrast with the law on free movement of workers and services, which in
many cases also applies to private actors.39 However, if companies or individuals act in a way
that excludes foreign products, the Court sees this as a matter for competition law.40
This principled limit to Article 34 is mitigated somewhat by a broad conception of the public.
For Article 34 to apply, a body does not have to be formally a part of the government. It is
sufficient that it is carrying out a public duty on behalf of the state, or that it is controlled by
the state. In Apple and Pear Development Council, a body representing fruit growers ran a buy
English apples and pears campaign. The council was not a public body, but it enjoyed public
law privileges, such as the power to levy fruit growers.
Case 222/82 Apple and Pear Development Council [1983] ECR 4083
17. As the Court held in its judgment of 24 November 1982 in Case 249/81 Commission v Ireland,
a publicity campaign to promote the sale and purchase of domestic products may, in certain
circumstances, fall within the prohibition contained in Article [34 TFEU] . . . , if the campaign is
supported by the public authorities . . . [I]n fact, a body such as the development council, which is set up
by the government of a Member State and is financed by a charge imposed on growers, cannot under
Community law enjoy the same freedom as regards the methods of advertising used as that enjoyed by
producers themselves or producers associations of a voluntary character.
The Court refers here to the Buy Irish case, in which the Irish government set up a marketing
organisation to promote Irish goods.41 This was clearly discrimination against foreign goods,
but was it attributable to the Irish state? They argued that the body was incorporated as an
independent company, acting on behalf of Irish producers, for whose actions the state could
not be held accountable.
Case 249/81 Commission v Ireland [1982] ECR 4005

23. The first observation to be made is that the campaign cannot be likened to advertising by private or
public undertakings . . . , or by a group of undertakings, to encourage people to buy goods produced by
those undertakings. Regardless of the means used to implement it, the campaign is a reflection of the
Irish governments considered intention to substitute domestic products for imported products on the
Irish market and thereby to check the flow of imports from other Member States.
38
39
40
41
Case 311/85 Vereniging van Vlaamse Reisbureaus v ASBL Sociale Dienst van de Plaatselijke en Gewestelijke
Overheidsdiensten [1987] ECR 3801.
See Chapters 19 and 20; E. Lohse, Fundamental Freedoms and Private Actors (2007) 13 EPL 159; S. Van den
Bogaert, Horizontality in C. Barnard and J. Scott (eds.), The Law of the European Single Market (Oxford, Hart,
2002) 123.
See generally on the competition/free movement boundary W. Sauter and H. Schepel, State and Market in
EU Law (Cambridge, Cambridge University Press, 2008) ch. 4; K. Mortelmans, Towards Convergence in the
Application of the Rules on Free Movement and on Competition (2001) 38 CMLRev. 613.
Case 249/81 Commission v Ireland [1982] ECR 4005.
It is clear that the link between state and organisation does not need to be legally watertight,
as long as it is demonstrably real. In this case it was the Irish state that was the object of the
Commissions enforcement action, but given the way the Court in Apples and Pears draws a
parallel between that case and the Buy Irish case, it seems likely that it would have been possible to apply Article 34 directly to the Buy Irish organisation itself. This is what happened in
the German Quality Products case.42 German producers complying with various quality rules
were able to apply for the right to affix a mark to their goods, German Quality Product. This
was clearly not available to foreign goods, and so amounted to a discriminatory marketing
scheme. It was found to violate Article 34 even though the scheme was operated by a nongovernmental body, because that body was a product of statute, and so was essentially acting
on behalf of and under the auspices of the state.
A more difficult situation is where the state does not actively support market-closing measures, but simply refrains from taking action against them. This first occurred in Commission
v France, in which the Court found that France had violated a combination of Articles 34 and
4(3) TEU (the duty of loyalty) by failing to remove French farmers who were blocking border crossings to prevent imported agricultural goods from reaching the French market.43 The
leading case, however, is now Schmidberger, in which the relevant principles have been most
clearly developed. In Schmidberger, a group of Austrian demonstrators blocked motorways
coming into Austria from Italy, as a protest against the pollution caused by transit traffic
in Alpine valleys. This clearly restricted the import of goods by blocking freight traffic, and
the Austrian government therefore had an obligation as in Commission v France to clear the
roads. However, this obligation had to be balanced against the fundamental right to association, which the protesters claimed would be violated by an unmitigated application of Article
34. The question, ultimately, was whether the Austrian government had behaved in a proportionate and reasonable way in the light of the balance which needed to be struck. The Court
found that it had, and provided a very clear framework for the balancing of free movement
and fundamental rights.
Case C-112/00 Schmidberger v Republic of Austria [2003] ECR I-5659

57. In this way the Court held in particular that, as an indispensable instrument for the realisation of a
market without internal frontiers, Article [34 TFEU] does not prohibit only measures emanating from the
State which, in themselves, create restrictions on trade between Member States. It also applies where a
Member State abstains from adopting the measures required in order to deal with obstacles to the free
movement of goods which are not caused by the State.
58. The fact that a Member State abstains from taking action or, as the case may be, fails to adopt
adequate measures to prevent obstacles to the free movement of goods that are created, in particular,
by actions by private individuals on its territory aimed at products originating in other Member States is
just as likely to obstruct intra-Community trade as is a positive act.
59. Consequently, Articles [34 and 35 TFEU] require the Member States not merely themselves to refrain
from adopting measures or engaging in conduct liable to constitute an obstacle to trade but also,
42
43
Case C-325/00 Commission v Germany (CMA) [2002] ECR I-9977.

Case C-265/95 Commission v France (Spanish strawberries) [1997] ECR I-6959.
60.
69.
77.
78.
79.
80.
81.
82.
when read with Article [4(3) TEU], to take all necessary and appropriate measures to ensure that that
fundamental freedom is respected on their territory. Article [4(3) TEU] requires the Member States to
take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations
arising out of the Treaty and to refrain from any measures which could jeopardise the attainment of the
objectives of that Treaty.
Having regard to the fundamental role assigned to the free movement of goods in the Community
system, in particular for the proper functioning of the internal market, that obligation upon each
Member State to ensure the free movement of products in its territory by taking the measures necessary
and appropriate for the purposes of preventing any restriction due to the acts of individuals applies
without the need to distinguish between cases where such acts affect the flow of imports or exports
and those affecting merely the transit of goods.
It is apparent from the file in the main case that the Austrian authorities were inspired by
considerations linked to respect of the fundamental rights of the demonstrators to freedom of
expression and freedom of assembly, which are enshrined in and guaranteed by the ECHR and the
Austrian Constitution.
The case thus raises the question of the need to reconcile the requirements of the protection of
fundamental rights in the Community with those arising from a fundamental freedom enshrined in
the Treaty and, more particularly, the question of the respective scope of freedom of expression and
freedom of assembly, guaranteed by Articles 10 and 11 of the ECHR, and of the free movement of
goods, where the former are relied upon as justification for a restriction of the latter.
First, whilst the free movement of goods constitutes one of the fundamental principles in the scheme
of the Treaty, it may, in certain circumstances, be subject to restrictions for the reasons laid down in
Article [36 TFEU] or for overriding requirements relating to the public interest, in accordance with the
Courts consistent case-law since the judgment in Case 120/78 Rewe-Zentral (Cassis de Dijon) [1979]
ECR 649.
Second, whilst the fundamental rights at issue in the main proceedings are expressly recognised by the
ECHR and constitute the fundamental pillars of a democratic society, it nevertheless follows from the
express wording of paragraph 2 of Articles 10 and 11 of the Convention that freedom of expression and
freedom of assembly are also subject to certain limitations justified by objectives in the public interest,
insofar as those derogations are in accordance with the law, motivated by one or more of the legitimate
aims under those provisions and necessary in a democratic society, that is to say justified by a pressing
social need and, in particular, proportionate to the legitimate aim pursued.
Thus, unlike other fundamental rights enshrined in that Convention, such as the right to life or
the prohibition of torture and inhuman or degrading treatment or punishment, which admit of no
restriction, neither the freedom of expression nor the freedom of assembly guaranteed by the ECHR
appears to be absolute but must be viewed in relation to its social purpose. Consequently, the exercise
of those rights may be restricted, provided that the restrictions in fact correspond to objectives of
general interest and do not, taking account of the aim of the restrictions, constitute disproportionate
and unacceptable interference, impairing the very substance of the rights guaranteed.
In those circumstances, the interests involved must be weighed having regard to all the circumstances
of the case in order to determine whether a fair balance was struck between those interests.
The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary
to determine whether the restrictions placed upon intra-Community trade are proportionate in the
light of the legitimate objective pursued, namely, in the present case, the protection of fundamental
rights.
The Court went on to find that the Austrian authorities had not violated Article 34. Their
actions reflected a justified and proportionate approach to balancing free movement of goods
and the right to demonstrate. The factors which influenced the Court in particular were that
this was a lawful and peaceful demonstration, approved in advance, for a limited period of
time (around thirty hours), and for the purpose of demonstrating a legitimate concern the
protection of the environment. Moreover, the authorities could show that they had considered
whether limiting the place and time of the demonstration so that the effect on goods traffic
was reduced was a realistic alternative, but had for reasonable grounds come to the conclusion
that these would deprive the demonstration of its very purpose and so be an excessive restriction on the right to demonstrate. Finally, once the demonstration was approved the authorities
tried to minimise disruption by diverting traffic to other possible routes. In short, the Austrian
authorities were a model of good governance, balancing interests in a carefully reasoned way.
Schmidberger can be contrasted with Commission v France, in which the demonstration was
explicitly aimed at preventing imports as such yet the French authorities tolerated border closure for an extended and open-ended period, showed little concern about occasional violence
by those involved, allowed a climate of fear and hostility to trade to develop and expressed
complete passivity over the consequences.
Schmidberger has been criticised because the Court appears to put the fundamental freedom
embodied in Article 34, which is essentially about trade, on an equal level with the fundamental rights to free association and expression.44 Despite the actual result, it has been argued
that the case opens the door to a degradation of the status of fundamental rights. However,
as the Court noted, the rights to free expression and assembly are not absolute, and neither is
Article 34, so it is hard to see what the Court could have done other than look for an appropriate balance. However, whether the Court always takes such a rights-friendly stance needs to
be considered in the light of recent cases in the field of services, Laval and Viking, discussed
in Chapter 19.45
3 PRODUCT STANDARDS AND CASSIS DE DIJON

Germany, like a number of EU Member States, traditionally regulates products strictly, leading to a marketplace with a limited range of goods but high quality. This creates problems for
importers located in less demanding states. Their goods, made according to different, or laxer,
standards do not comply with local rules in many other states and so cannot gain access to the
markets of these states. In the early days of European integration this was not seen as unfair. A
when in Rome approach was taken.46 If importers wished to sell in state X they should comply
with its rules. Dassonville was not generally considered to prohibit product standards if these
were equally applicable to domestic and to foreign products.
However, this approach brings with it a number of problems. First, it requires producers
to make their products according to a number of different standards, depending upon where
44
45
46
J. Morijn, Balancing Fundamental Rights and Common Market Freedoms in Union Law (2006) 12 ELJ 15.
See N. Nic Shuibhne, Margins of Appreciation: National Values, Fundamental Rights and EC Free Movement
Law (2009) 34 ELRev. 230; C. Kombas, Fundamental Rights and Fundamental Freedoms: A Symbiosis on the
Basis of Subsidiarity (2006) 12 EPL 433.
The use of the phrase in this context is borrowed from K. Nicolaidis and G. Shaffer, Managed Mutual Recognition
Regimes: Governance Without Global Government (2005) 68 Law and Contemporary Problems 263.
they wish to export to. The idea that the internal market will enable consolidation of industry
and economies of scale is undermined if factories have to run numerous separate production
lines for different markets. Moreover, in practice, producers will not always do this, so that the
realisation of an undivided European market will be impeded. Markets will remain local, as
producers decide that it is too difficult or expensive to rework their goods to comply with local
rules. The markets in smaller states will be particularly isolated, as potential profits are less and
may not justify adapting production.
Traditionally such issues were to be dealt with by harmonisation. However, this did not
turn out to be the easy and effective market-building tool that some had hoped, as product
development and national regulation outpaced the capacity of the European institutions to
harmonise.47 It was in this context, and during a period of European political stagnation, that
the Court intervened with its judgment in Cassis de Dijon.
German law required fruit liqueurs to possess at least 25 per cent alcohol. Cassis de Dijon, a
blackcurrant liqueur, was made in France and typically contained between 15 and 20 per cent
alcohol. As a result it could not be sold in Germany. A German importer, refused authorisation
to import and sell Cassis, challenged this decision on the basis that it contravened Article 34.
Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fr Branntwein

(Cassis de Dijon) [1979] ECR 649
8. In the absence of common rules relating to the production and marketing of alcohol . . . it is for the
Member States to regulate all matters relating to the production and marketing of alcohol and alcoholic
beverages on their own territory.
Obstacles to movement within the community resulting from disparities between the national laws
relating to the marketing of the products in question must be accepted insofar as those provisions
may be recognized as being necessary in order to satisfy mandatory requirements relating in particular
to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial
transactions and the defence of the consumer.
9. The government of the Federal Republic of Germany, intervening in the proceedings, put forward various
arguments which, in its view, justify the application of provisions relating to the minimum alcohol
content of alcoholic beverages, adducing considerations relating on the one hand to the protection of
public health and on the other to the protection of the consumer against unfair commercial practices.
10. As regards the protection of public health the German government states that the purpose of the
fixing of minimum alcohol contents by national legislation is to avoid the proliferation of alcoholic
beverages on the national market, in particular alcoholic beverages with a low alcohol content, since, in
its view, such products may more easily induce a tolerance towards alcohol than more highly alcoholic
beverages.
11. Such considerations are not decisive since the consumer can obtain on the market an extremely wide range
of weakly or moderately alcoholic products and furthermore a large proportion of alcoholic beverages with
a high alcohol content freely sold on the German market is generally consumed in a diluted form.
12. The German government also claims that the fixing of a lower limit for the alcohol content of certain
liqueurs is designed to protect the consumer against unfair practices on the part of producers and
distributors of alcoholic beverages.
47
See Chapter 16.
This argument is based on the consideration that the lowering of the alcohol content secures a
competitive advantage in relation to beverages with a higher alcohol content, since alcohol constitutes by
far the most expensive constituent of beverages by reason of the high rate of tax to which it is subject.
Furthermore, according to the German government, to allow alcoholic products into free circulation
wherever, as regards their alcohol content, they comply with the rules laid down in the country of
production would have the effect of imposing as a common standard within the community the lowest
alcohol content permitted in any of the Member States, and even of rendering any requirements in this
field inoperative since a lower limit of this nature is foreign to the rules of several Member States.
13. As the Commission rightly observed, the fixing of limits in relation to the alcohol content of beverages
may lead to the standardization of products placed on the market and of their designations, in the
interests of a greater transparency of commercial transactions and offers for sale to the public.
However, this line of argument cannot be taken so far as to regard the mandatory fixing of minimum
alcohol contents as being an essential guarantee of the fairness of commercial transactions, since it is a
simple matter to ensure that suitable information is conveyed to the purchaser by requiring the display
of an indication of origin and of the alcohol content on the packaging of products.
14. It is clear from the foregoing that the requirements relating to the minimum alcohol content of
alcoholic beverages do not serve a purpose which is in the general interest and such as to take
precedence over the requirements of the free movement of goods, which constitutes one of the
fundamental rules of the Community.
In practice, the principal effect of requirements of this nature is to promote alcoholic beverages
having a high alcohol content by excluding from the national market products of other Member States
which do not answer that description.
It therefore appears that the unilateral requirement imposed by the rules of a Member State of a
minimum alcohol content for the purposes of the sale of alcoholic beverages constitutes an obstacle to
trade which is incompatible with the provisions of Article [34 TFEU].
There is therefore no valid reason why, provided that they have been lawfully produced and marketed
in one of the Member States, alcoholic beverages should not be introduced into any other Member
State; the sale of such products may not be subject to a legal prohibition on the marketing of beverages
with an alcohol content lower than the limit set by the national rules.
15. Consequently, the first question should be answered to the effect that the concept of measures having
an effect equivalent to quantitative restrictions on imports contained in Article [34 TFEU] is to be
understood to mean that the fixing of a minimum alcohol content for alcoholic beverages intended for
human consumption by the legislation of a Member State also falls within the prohibition laid down in
that provision where the importation of alcoholic beverages lawfully produced and marketed in another
Member State is concerned.
The Court finds that the application of product standards to imports hinders their importation, as is obviously correct. Therefore such rules, applied to imports, are MEQRs.
The solution, however, is not to prohibit product standards as such. This would result in an
unregulated European product market, undesirable for many reasons. By contrast, the Court
begins paragraph 8 by noting that since there is no EU legislation harmonising alcohol levels
(there is now, there was not then), it is quite legitimate for Member States to regulate this matter. It is thus not the existence of product standards as such that is the problem, but just their
application to products imported from other Member States.
The trade-restricting effects of such application are dealt with by developing two ideas,
which are the major contribution of Cassis de Dijon to EU law, and which are both among the
most important legal developments since the Unions foundation.
The first of these is mutual recognition. The Court finds in paragraph 14 that if products
comply with the laws of the Member State where they are produced, then there is no reason
why they should not be sold in all other Member States. Each Member State is required to
accept products made according to the laws of other Member States. What is good enough
for France is good enough for Germany. The name subsequently given to this idea is mutual
recognition, because Member States recognise as adequate each others laws and regulations,
and therefore do not impose additional requirements on products complying with these. This
idea is immensely powerful and has become a general principle of EU law, applied not only
to the free movement of goods, but throughout the internal market.48 It provides a conceptual
basis for accepting not just foreign products, but foreign qualifications, tests and certificates,
official documents, and so on.49 As a general rule, the foreign (from another Member State)
must be recognised as functionally equivalent, at least in all really important respects, to the
domestic.
The second idea is that of mandatory requirements. While the Court states that in principle
goods from one state should be marketable in all others, it also concedes in paragraph 8 that
there may sometimes be a need for derogation from this general principle. Sometimes the application of standards to imports may be necessary to protect important interests such as consumer protection or public health. The name given to these, mandatory requirements, sounds
somewhat odd in English, but has stuck and is still used, although the phrase public interest
objectives is now also used.
It is therefore the case that an equally applicable rule which would otherwise violate Article
34 may be saved if it can be shown that it is necessary to protect some public interest objective.
There is therefore a balancing process involved, in which proportionality is the central concept.
Cases subsequent to Cassis are in fact a litany of judicial attempts to decide whether a given
general interest is, on the facts, sufficient to justify derogation from the mutual recognition
rule. The following two sections go into more detail first on the general rule, and then the application of the mandatory requirement exceptions.
(i) Mutual recognition

It seems fairly intuitive that a factory located in a certain Member State should be subject
to the rules and regulations of that state. It also seems fairly intuitive that a product on the
supermarket shelves in a Member State should be subject to the rules and regulation in that
state. Yet, if products are required to comply with the laws of both the state of production and
the state of sale this can create impossible burdens. Imagine, for example, that France had a
maximum alcohol limit of 20 per cent and Germany a minimum of 25 per cent; it would be
impossible to manufacture in France for sale in Germany. Even without such extreme situations, the burden of complying with two sets of laws would impose cost and inconvenience
on producers.
48
49
See Chapter 16.

See Chapters 19 and 20.
This is, of course, an import-specific problem. Goods sold domestically would face no problem because the state of production and state of sale would be the same. They would only have
one set of laws to comply with. However, any goods traded between states would face at least
two.50 The application of product standards to imports would therefore not just make trade
difficult, but it would often disadvantage imports relative to domestic production.
The solution is to construct a regime in which a given product (or service, the principle is
generalised now) is only subject to one set of rules. If there has been harmonisation then this
will provide that unique regulatory framework. However, in the absence of harmonisation the
question is whether it is better to apply the rules of the state of sale or of production.
Given that product standards exist to protect the consumers of the products, and that the relevant consumers are in the state of sale, it might seem most logical to make these the relevant
laws. On such a model, a factory located in France could gain exemption from local product
regulations by declaring that it was manufacturing for export. However, this approach has
great practical difficulties. First, it fragments the production process, by requiring producers
to make different goods for different markets, as discussed above. Secondly, it is hard to supervise. On the whole, supervision of production facilities is easier than of the marketplace. A
factory is fixed, hard to hide and easy to inspect. By contrast, if liqueurs have not been subject
to any French laws or control because they were declared to be destined for the German market, then the German authorities will want to conduct very thorough controls before admitting
them, creating new and significant barriers to movement, and sometimes, given the openness
of borders, being hard to enforce. There is a real risk that a choice for state of destination regulation would result in products or services actually escaping any effective supervision.
The Court in Cassis therefore made a choice for regulation by the country of origin. It is now
a general rule of free movement law that products or services are primarily subject to the laws
of their origin state, and should not, except where mandatory requirements apply, be subjected
to further requirements based on destination state law.51 Joerges has described Cassis de Dijon
as creating a meta-norm which both parties to a free movement conflict (France and Germany
in this case) can accept, and which mediates between their different laws.52
This approach has great legal elegance. It has been described as a principle of tolerance,
akin to multiculturalism in products, because it requires Member States to accept products that
are different from those they are used to domestically.53 It embodies an idea of different but
equal. Moreover, in a few lines it provides a framework for an entire internal market.54 Using
the ideas in Cassis it is possible to implement trade between states while still allowing Member
States to maintain their own laws and avoiding the need for harmonisation.
50
51
52
53
54
See Case C-470/93 Verein gegen Unwesen in Handel und Gewerbe Kln v Mars GmbH [1995] ECR I-1923.
See Case C-288/89 Gouda v Commissariat voor de Media [1991] ECR I-4007; Directive 2006/123/EC on services
in the internal market [2006] OJ L376/36; see Chapter 19.
See C. Joerges and J. Neyer, Deliberative Supranationalism Revisited, EUI Working Paper No. 2006/20, 25
(Florence, European University Institute, 2006).
See Nicolaidis and Shaffer, above n. 46, 317; G. Davies, Is Mutual Recognition an Alternative to Harmonisation:
Lessons on Trade and Tolerance of Diversity from the EU in F. Ortino and L. Bartels (eds.), Regional Trade Agreements and the WTO (Oxford, Oxford University Press, 2006) 26580.
For a very thorough discussion of the policy issues, see the special edition of the Journal of European Public
Policy on mutual recognition: S. Schmidt (ed.), Mutual Recognition as a New Mode of Governance (2007) 14(5)
JEPP; K. Armstrong, Mutual Recognition in C. Barnard and J. Scott (eds.), The Law of the European Single
Market (Oxford, Hart, 2002) 225.
Yet, it is open to powerful criticism from various perspectives. It has been claimed that
applying mutual recognition results in non-economic concerns being trumped by free trade;
that it crushes diversity and replaces it by a deregulated and uniform marketplace;55 and yet
also that it is ineffective in creating free trade, that mutual recognition is too open-ended and
abstract to be effectively applied by national courts and authorities.56 It can even therefore be
seen as a stalking horse for harmonisation, an approach to free movement that is apparently
based on local diversity of regulation but by its very failure to create a market turns into a
justification for centralised rules.57
The first criticism is that standards are not in fact equal in different states. While it may
be true that all Member States generally ensure that their products are adequately safe, it is
a fantasy to think that the quality guaranteed by different standards is the same. Some states
have a laissez-faire approach to quality regulation, and are content to let the consumer decide
what she is prepared to pay for. Others are strict, as will be seen in the subsequent section.
Admitting goods made according to foreign laws therefore undermines the quality standards
in force in strict states. The populations of those countries are no longer able to express their
collective preference for a certain kind of strictly regulated market in which low quality goods
are prohibited. Trade trumps both local democracy and product quality.58
Moreover, mutual recognition has potential economic effects. The Court is quite clear that it
is not the product rule as such which is contrary to Article 34, but its application to imports.
Thus, Germany is able to apply its 25 per cent rule to domestically made liqueurs, just not to
foreign ones. But this puts German producers at a distinct disadvantage. Alcohol is a significant part of the cost of such liqueurs (one of the reasons for the conflict), so foreign liqueur will
probably be cheaper. The German government is then faced with the choice between abandoning its rule for domestic producers, and moving to a laissez-faire marketplace, or continuing
to enforce the rule and risking domestic producers being priced out of the market. Ultimately,
as the German government argued in the case, there is a risk that the lowest standard state
provides the de facto standard everywhere; their exports are the cheapest products in every
shop in Europe. A regulatory race to the bottom is then feared as other states abandon their
own rules. In fact, as discussed in Chapter 16, it is notable that this does not always, or even
often, happen but the risk is real in some circumstances.
The discussion above may suggest that mutual recognition tends to sacrifice non-economic
concerns in the cause of free trade. However, the principle is also criticised from a free trade
perspective, with the claim being that in practice it is ineffective.59 The problem is that applying Cassis entails balancing interests, since the possibility of derogations, the mandatory
requirements, does exist. This balancing is so politically laden that it is seen as a heavy burden
on national judges and authorities, who may well be inclined to defer to national laws and
55
56
57
58
59
See K. Alter and S. Meunier-Aitsahalia, Judicial Politics in the European Community: European Integration and
the Pathbreaking Cassis de Dijon Decision (1994) 26 Comparative Political Studies 535.
See J. Pelkmans, Mutual Recognition in Goods: On Promises and Disillusions (2007) 14 JEPP 699; Commission
Report to the Council, Parliament and ESC, Second Biennial Report on the Application of the Principle of Mutual
Recognition in the Single Market, COM(2002)419 final, 23 July 2002.
See Davies, above n. 53; W. Kerber and R. van den Bergh, Mutual Recognition Revisited: Misunderstandings,
Inconsistencies, and a Suggested Reinterpretation (2008) 61 Kyklos 447.
Kerber and van den Bergh, above n. 57; H.-C. von Heydebrand u.d. Lasa, Free Movement of Foodstuffs,
Consumer Protection and Food Standards in the European Community: Has the Court Got it Wrong? (1991)
16 ELRev. 391.
See Pelkmans, above n. 56.
quickly concede their necessity when faced with governmental arguments to that effect.60 Expecting national bodies to set aside national law to an extent sufficient to really create a single
market is perhaps unrealistic. Thus, it can be argued that mutual recognition has not turned
out to be the legal panacea it may seem, and leaves many obstacles to movement in place. In
practice, what often happens is that litigation over national product rules identifies a particular
problem, at which point the Commission may begin the process of harmonisation. Cassis de
Dijon itself did not lead to a European market in which alcohol products are freely traded on
the basis of that mutual recognition. On the contrary, shortly afterwards harmonising legislation on alcohol levels was adopted.
Most of these abstract criticisms depend for their force upon the extent to which mandatory
requirements actually limit the general rule of mutual recognition. It is thus these requirements, rather than the general principle, which have been the concrete subject matter of postCassis legal debate.
(ii) Mandatory requirements

In Cassis de Dijon, the Court provided a list of the sorts of reasons which might justify restricting the free movement of goods. It mentioned the effectiveness of fiscal supervision, the
protection of public health, the fairness of commercial transactions and the defence of the consumer. This list was broadened in subsequent cases, and the category of mandatory requirements is now considered to be open-ended. A formulation which is often cited by the Court
was used in Bellamy and English Shop, where the Court had to consider whether Belgium was
justified in applying its food labelling laws to imported English foodstuffs, which the Belgians
claimed was necessary to protect the consumer.
Case C-123/00 Criminal Proceedings Against Bellamy and English Shop Wholesale
[2001] ECR I-2795
18. In that regard, it should be borne in mind that, in the absence of harmonisation of legislation, obstacles
to free movement of goods which are the consequence of applying, to goods coming from other
Member States where they are lawfully manufactured and marketed, rules that lay down requirements
to be met by such goods (such as those relating to designation, form, size, weight, composition,
presentation, labelling, packaging) constitute measures having equivalent effect which are prohibited by
Article [34 TFEU], even if those rules apply without distinction to all products, unless their application
can be justified by a public-interest objective taking precedence over the free movement of goods . . .
An equally applicable rule restricting movement may therefore be justified by any reason
within the umbrella concept of the public interest. The Court has set certain limits to this concept, such as the rule that purely economic reasons may not be relied upon,61 and these limits
60
61
See M. Jarvis, The Application of EC Law by National Courts: The Free Movement of Goods (Oxford, Oxford
University Press, 1998) 2201.
Case 72/83 Campus Oil v Minister for Industry and Energy [1984] ECR 2727; J. Snell, Economic Aims as Justifications for Restrictions on Free Movement in A. Schrauwen (ed.), The Rule of Reason: Rethinking Another Classic
of European Legal Doctrine (Groningen, Europa Law Publishing, 2005).
are discussed further in Chapter 21. However, the class of legitimate justifications remains
broad. Nevertheless, in practice the majority of cases have concerned consumer protection,
while those concerning environmental protection also form an important group. These are
looked at in the next two sections, to show how the Court determines what is justified and, in
particular, what is proportionate.
The legal status of these judicially invented derogations is odd. Article 36 TFEU provides for
exceptions to Article 34 where necessary to protect really important interests such as public
health or security.62 Yet when the Court referred to mandatory requirements in Cassis, it was
not offering a broad interpretation of Article 36. On the contrary, it was creating a new class
of exception to free movement, existing alongside and in addition to the exceptions in the
Treaty.63 These exceptions are in one sense broader than Article 36: they cover a wider range
of interests. However, they are narrower than Article 36 in that they only apply to equally
applicable measures.64 Where a measure discriminates directly, an appeal to the doctrine of
mandatory requirements may not be made.
(a) Consumer protection

The most common justification for applying national product rules to imports is the protection of the consumer. One of the most well-known examples is the German Beer case.65 The
Reinheitsgebot, a centuries-old German rule defining the ingredients permitted in beer, was
challenged as contrary to Article 34. Many foreign beers used ingredients not on the list, varying from rice to various chemical additives, and so were denied access to the German market
under the name beer they could be sold under some other name, say rice-chemical alcoholic
beverage, but this was clearly unattractive. The German government claimed that the rule was
necessary to prevent consumers being deceived about what they were buying: the German
consumer had certain expectations, which beers made from non-conforming ingredients did
not fulfil. The impure brew was simply not, in German eyes, beer.
Case 178/84 Commission v Germany (German beer) [1987] ECR 1227

29. It is not contested that the application of article 10 of the Biersteuergesetz to beers from other
Member States in whose manufacture raw materials other than malted barley have been lawfully used,
in particular rice and maize, is liable to constitute an obstacle to their importation into the Federal
Republic of Germany.
30. Accordingly, it must be established whether the application of that provision may be justified by
imperative requirements relating to consumer protection.
31. The German governments argument that article 10 of the Biersteuergesetz is essential in order to
protect German consumers because, in their minds, the designation Bier is inseparably linked to the
beverage manufactured solely from the ingredients laid down in article 9 of the Biersteuergesetz must
be rejected.
62
63
64
65
See Chapter 21.

See P. Craig and G. de Brca, EU Law (4th edn, Oxford, Oxford University Press, 2006) 7067.
Case 788/79 Gilli and Andres [1980] ECR 2071.
Case 178/84 Commission v Germany (German beer) [1987] ECR 1227.
32. Firstly, consumers conceptions which vary from one Member State to the other are also likely to evolve
in the course of time within a Member State. The establishment of the common market is, it should
be added, one of the factors that may play a major contributory role in that development. Whereas
rules protecting consumers against misleading practices enable such a development to be taken into
account, legislation of the kind contained in article 10 of the Biersteuergesetz prevents it from taking
place. As the court has already held in another context (Case 170/78 Commission v United Kingdom),
the legislation of a Member State must not crystallize given consumer habits so as to consolidate an
advantage acquired by national industries concerned to comply with them.
33. Secondly, in the other Member States of the Community the designations corresponding to the German
designation Bier are generic designations for a fermented beverage manufactured from malted barley,
whether malted barley on its own or with the addition of rice or maize. The same approach is taken
in Community law as can be seen from heading no. 22.03 of the common customs tariff. The German
legislature itself utilizes the designation Bier in that way in article 9(7) and (8) of the Biersteuergesetz in
order to refer to beverages not complying with the manufacturing rules laid down in article 9(1) and (2).
34. The German designation Bier and its equivalents in the languages of the other Member States of the
Community may therefore not be restricted to beers manufactured in accordance with the rules in force
in the Federal Republic of Germany.
35. It is admittedly legitimate to seek to enable consumers who attribute specific qualities to beers
manufactured from particular raw materials to make their choice in the light of that consideration.
However, as the court has already emphasized, that possibility may be ensured by means which do not
prevent the importation of products which have been lawfully manufactured and marketed in other
Member States and, in particular, by the compulsory affixing of suitable labels giving the nature of
the product sold. By indicating the raw materials utilized in the manufacture of beer such a course
would enable the consumer to make his choice in full knowledge of the facts and would guarantee
transparency in trading and in offers to the public. It must be added that such a system of mandatory
consumer information must not entail negative assessments for beers not complying with the
requirements of article 9 of the Biersteuergesetz.
The Court accepts that consumers may have preferences, for example for pure beer, and that
their ability to satisfy these preferences is important and deserves protection. However, it takes
the view that prohibiting the sale as beer of any non-conforming product is disproportionate.
Consumers can be adequately protected by a labelling requirement: if it is clear from the label
which ingredients the beer contains and whether it is made according to the purity rules then
this is sufficient consumer protection, and is more proportionate because it has a far lesser effect on interstate trade. It is easier for foreign beer producers to amend their labels than their
product.
This is the Courts consistent approach. It insists that matters of quality and preference,
rather than safety or health, do not need to be dealt with by bans, but can be more proportionately addressed by rules on labels.66 This is a coherent part of the Courts relatively liberal
philosophy of consumer protection, which assumes that if adequate information is available to
66
See e.g. Case 261/81 Rau v De Schmedt [1982] ECR 3961; Case 407/85 Drei Glocken [1988] ECR 4233; see also
Case 788/79 Gilli and Andres [1980] ECR 2071. See also Joined Cases C-158/04 and C-159/04 Alfa Vita v Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] ECR I-8135, para. 23.
consumers they are then able to make their own decisions about quality.67 This is by contrast
with the more paternalistic approach reflected in the rules in Cassis and German Beer, where
the state determined what consumers could buy and what they could not.
This information-based approach assumes that consumers read labels, and are reasonably
circumspect.68 It is vulnerable to the criticism that in fact these assumptions are not true,
and consumers will simply seize a product without realising that it is not quite what they
are used to. There is a considerable scholarship on whether the information approach is a
sensible and proportionate approach to consumer protection, or rather its sacrifice on the altar
of free trade.69
This debate can be kept in perspective by remembering that it is only quality that is in
issue. Where there is a genuine health risk, the Court is much more deferential to national
rules.70 Moreover, there is an issue of principle involved, which is addressed in paragraph 32
of the judgment above: consumer behaviour and expectations are not fixed, but changing,
and so the law should not try to entrench them as they are, but provide a framework within
which they can develop. The European consumer may be unused to diversity, but the goals
of the internal market are that she should become used to this, and this means she will need
to become someone used to making decisions on the basis of information, rather than having
products selected for her by the state. Whether this is necessarily an improvement in quality of life is another issue, but it is a persuasive corollary of the free trade agreement which
Article 34 represents.
In the judgment, this question of consumer change was framed around the issue of naming.
The German government had argued that impure beer was, in the eyes of the local consumer,
not beer. The Court takes this as an example of the kind of expectation which must not be
crystallised in law, precisely because it has a trade-hindering effect.71 The Court further suggests that what is beer should be understood in the context of other national definitions and
the EU customs definition. National product definitions no longer stand in isolation.
This has recurred in several cases. Italy challenged the phrase apple vinegar saying that
it was a fraud on consumers because vinegar was inherently made from grapes, while France
challenged foreign foie gras which did not entirely conform to French rules.72
67
68
69
70
71
72
See S. Weatherill, EU Consumer Law and Policy (Northampton, Edward Elgar, 2005); M. Radeideh, Fair Trading in
EC Law: Information and Consumer Choice in the Internal Market (Groningen, Europa Law Publishing, 2005).
See Case C-210/96 Gut Springenheide [1998] ECR I-4657; Case C-51/94 Commission v Germany [1995] ECR
I-3599; Case 27/80 Fietje [1980] ECR 3839.
See L. W. Gormley, The Consumer Acquis and the Internal Market (2009) 20 EBLRev. 409; von Heydebrand u.d.
Lasa, above n. 58; C. Macmaolain, Waiter, Theres a Fly in my Soup. Yes Sir, thats E120: Disparities Between
Actual Individual Behaviour and Regulating Labelling for the Average Consumer in EU Law (2008) 45 CMLRev.
1147; M. Radeideh, Fair Trading in EC Law: Information and Consumer Choice in the Internal Market (Groningen,
Europa Law Publishing, 2005); H. Unberath and A. Johnston, The Double-headed Approach of the ECJ Concerning Consumer Protection (2007) 44 CMLRev. 1237; S. Weatherill, Recent Case Law Concerning the Free Movement of Goods: Mapping the Frontiers of Market Deregulation (1999) 36 CMLRev. 51; S. Weatherill, EU Consumer
Law and Policy (Northampton, Edward Elgar, 2005).
See Chapter 21.
See also Case C-358/01 Commission v Spain [2003] ECR I-13145, para. 52.
Case 788/79 Gilli and Andres [1980] ECR 2071; Case C-166/03 Commission v France (Gold) [2005] ECR I-6535;
Case C-12/00 Commission v Spain (Spanish chocolate) [2003] ECR I-459; Case C-14/00 Commission v Italy (Chocolate) [2003] ECR I-513; Case C-358/01 Commission v Spain [2003] ECR I-13145; see also Case C-6/02 Commission v France [2003] ECR I-2389.
Case C-184/96 Commission v France [1998] ECR I-6197

23. So far as concerns the argument based on the necessity to prevent offences with respect to false
descriptions, the Court, in its judgment in Deserbais, did not exclude the possibility that Member States
could require those concerned to alter the denomination of a foodstuff where a product presented
under a particular denomination is so different, as regards its composition or production, from the
products generally known under that denomination in the Community that it cannot be regarded as
falling within the same category (Case 286/86 Ministre Public v Deserbais [1988] ECR 4907).
24. Nonetheless, the mere fact that a product does not wholly conform to the requirements laid down in
national legislation on the composition of certain foodstuffs with a particular denomination does not
mean that its marketing can be prohibited.
If someone tried to market a generic pat as foie gras, it would be justifiable to prevent this
on consumer protection grounds. However, the fact that foie gras is made in slightly different
ways in other places is not enough to justify a prohibition on using the name.
The concept of the informed and circumspect consumer defines the Courts approach to
consumer protection, but leaves open the question of what information the consumer can be
expected to process and understand, and how much information she needs. While labelling requirements are in general the legislative approach that states should follow, even these may be
disproportionate under some circumstances. Because the label is a physical part of the product,
national labelling rules are themselves product rules in the Cassis sense, and so must still be
justified. Labelling requirements impose relatively low costs on producers, and so are preferable to rules about the product itself, but they do impose some costs, so that if the labelling
rules are in some sense unreasonable then these too will be contrary to Article 34.
There are two kinds of potential labelling problems. One is where the information to be
displayed is in some sense discriminatory. The Court warned about this in German Beer. If, for
example, non-conforming beer was required to bear a red stamp saying impure then while
this might not be very difficult to comply with, and while it might make matters clear to the
consumer, it would nevertheless contravene Article 34 because it would have an unnecessarily
negative effect on marketing of foreign beer, and so would be disproportionate. Something
rather similar to this occurred in the Irish Souvenirs case, in which Ireland proposed that
souvenirs not made in Ireland be stamped with their country of production or with the word
foreign.73 A requirement to indicate the country of production, even if it applies to all goods,
the Court has found, may have the effect of steering consumers towards national goods, while
it is not in fact necessary information.74
The other kind of labelling problem is where the information to be displayed is pointless.
When Belgium required medicinal labels to bear the notification number which was associated with the application for approval to sell that medicine in Belgium, the Court found this to
be disproportionate.75 It imposed a small, but not trivial, burden on producers while realistically, what use was it to the consumer?
73
74
75
Case 113/80 Commission v Ireland (Irish souvenirs) [1981] ECR 1625.

Ibid; Case 207/83 Commission v United Kingdom (marks of origin) [1985] ECR 1201.
Case C-217/99 Commission v Belgium [2000] ECR I-10251; Case C-55/99 Commission v France [2000] ECR
I-11499.
The protective approach to product regulation which was traditionally applied to the substance of the goods can also be seen in national rules on packaging and information. In Clinique, for example, the German government objected to the marketing of cosmetics under that
name, because it was too similar to Klinik, the German word for hospital.76 Consumers might
therefore think that the products were medically approved, and believe that they really would
look younger or more beautiful if they used them.
The Court disagreed. In the circumstances (the products were sold not by pharmacists but in
shops selling make-up), it felt the dangers did not justify the trade-hindering effects of the rule.
The European consumer is expected to show a certain awareness and scepticism. If this is not
yet always reality, that fact does not justify legislation entrenching passivity and naivety.
(b) Protection of the environment

Environmental issues are often dealt with under Article 36, and are discussed further in
Chapter 21. However, the protection of the environment has also been recognised as a mandatory requirement, especially in the context of recycling schemes and their effect on trade.
These recycling cases have been about soft drinks containers. In each case a state has imposed obligations on producers related to the types of containers they used for their drinks. In
Commission v Denmark, a system was successfully challenged in which only certain types of
soft drinks containers were permitted in Denmark, the goal being to make recycling more efficient and practical.77 Since this dramatically limited the possibilities for importing soft drinks
from elsewhere in Europe where many different kinds of containers were in use, the rule was
disproportionate. The reasoning of the Court was that it was not necessary to limit the types of
containers, since the goal of promoting recycling could be met by other means.
The case was heavily criticised.78 While it is, of course, true that many different kinds of
containers can be recycled, the point is that this is expensive. A recycling scheme is most efficient if it only has to deal with a limited range of packaging types. In reality, recycling will
be successful if it is not too expensive, and so the Danish considered that their strict limits
on container types were in fact an essential part of increasing the amount of recycling. That
the Court did not consider economic reality, but merely the theoretical fact that other kinds of
containers were in principle also recyclable, suggested that environmental protection was not
being taken seriously, and would be subordinated to trade.
In more recent cases, the environment has been more successful. In Radlberger Getrnkegesellschaft, the German government amended its laws to require producers selling more than
a certain proportion of soft drinks in non-reusable containers to set up a deposit-and-return
scheme, whereby they would take back the waste packaging they generated, and deal with it
themselves.79 Since such a scheme costs money, producers using a large proportion of nonreusable packaging faced a cost burden which might hinder their access to the German market.
76
77
78
79
Case C-315/92 Verband Sozialer Wettbewerb v Clinique Laboratories [1994] ECR I-317.
Case 302/86 Commission v Denmark [1988] ECR 4607.
See J. Scott, EC Environmental Law (London, Longman, 1998) 6972, quoted in J. Holder and M. Lee, Environmental Protection: Law and Policy (Cambridge, Cambridge University Press, 2007) 179; H. Temmink, From Danish
Bottles to Danish Bees: The Dynamics of Free Movement of Goods and Environmental Protection A Case Law
Analysis (2000) 1 YEEL 61.
Case C-309/02 Radlberger Getrnkegesellschaft v Land Baden-Wrttemberg [2004] ECR I-11763; see also the
almost identical Case C-463/01 Commission v Germany [2004] ECR I-11705, decided on the same day.
The Court was particularly concerned about the fact that non-German producers used more
non-recyclable packaging than German ones, so that they would be relatively more affected.
Moreover, a return system is clearly more expensive if the goods have to be returned to a
distant production location in another state than if production is local. The scheme therefore
imposed a greater burden on more distant producers. In the light of this, the Court considered
whether the environmental benefits outweighed these trade concerns:
Case C-309/02 Radlberger Getrnkegesellschaft mbH & Co. v Land Baden-Wrttemberg

[2004] ECR I-11763
75. In accordance with settled case-law, national measures capable of hindering intra-Community trade
may be justified by overriding requirements relating to protection of the environment provided that the
measures in question are proportionate to the aim pursued.
76. The obligation to establish a deposit and return system for empty packaging is an indispensable element
of a system intended to ensure that packaging is reused.
77. With regard to non-reusable packaging, as the defendant in the main proceedings and the German
Government state, the establishment of a deposit and return system is liable to increase the proportion
of empty packaging returned and results in more precise sorting of packaging waste, thus helping to
improve its recovery. In addition, the charging of a deposit contributes to the reduction of waste in the
natural environment since it encourages consumers to return empty packaging to the points of sale.
78. Furthermore, insofar as the rules at issue in the main proceedings make the entry into force of a new
packaging-waste management system conditional on the proportion of reusable packaging on the
German market, they create a situation where any increase in sales of drinks in non-reusable packaging
on that market makes it more likely that there will be a change of system. Inasmuch as those rules
thus encourage the producers and distributors concerned to have recourse to reusable packaging, they
contribute towards reducing the amount of waste to be disposed of, which constitutes one of the
general objectives of environmental protection policy.
79. However, in order for such rules to comply with the principle of proportionality, it must be ascertained
not only whether the means which they employ are suitable for the purpose of attaining the desired
objectives but also whether those means do not go beyond what is necessary for that purpose.
80. In order for national rules to satisfy the latter test, they must allow the producers and distributors
concerned, before the deposit and return system enters into force, to adapt their production methods
and the management of non-reusable packaging waste to the requirements of the new system. While
it is true that a Member State may leave to those producers and distributors the task of setting up that
system by organising the taking back of packaging, the refunding of sums paid by way of deposit and
any balancing of those sums between distributors, the Member State in question must still ensure that,
at the time when the packaging-waste management system changes, every producer or distributor
concerned can actually participate in an operational system.
81. Legislation, such as the VerpackV, that makes the establishment of a deposit and return system
dependent on a packaging reuse rate, which is certainly advantageous from an ecological point of view,
complies with the principle of proportionality only if, while encouraging the reuse of packaging, it gives
the producers and distributors concerned a reasonable transitional period to adapt thereto and ensures
that, at the time when the packaging-waste management system changes, every producer or distributor
concerned can actually participate in an operational system.
In principle, therefore, the Court was prepared to accept rules which would not only have
a significant effect on trade, but probably impact on importers much more than on domestic
producers, because those rules did serve an important environmental goal. The only requirements that it imposed, in the name of proportionality, was that producers be given a reasonable
amount of time to adapt to the new rules and that the system be so constructed that producers
were in practice able to participate and comply.
4 SELLING ARRANGEMENTS AND KECK

The acceptance in Cassis that equally applicable rules could be MEQRs led to cases testing
the limits of this principle, applying it to any kind of measure which could be argued to have
a negative effect on import quantities. Most well-known, the rules on Sunday trading in the
United Kingdom were challenged as contrary to Article 34: if shops could open on Sundays
they could sell more goods, and some of those goods would be imported.80 Ergo, requiring
shops to close on Sundays limited imports.
This turns a Treaty Article that is apparently about goods into a tool for policing wider
socio-economic regulation, which brings with it risks of constitutional discontent among the
Member States. Moreover, it is inefficient. In the Sunday trading cases, the Court unsurprisingly found that the measures were justified by legitimate social goals, and therefore not contrary to the Treaty. All that was happening was that many creative cases were being brought,
but they were not being won. Such a broad reading of the Treaty was not therefore opening up
the internal market or increasing trade. It was just increasing work for the Court.
In Keck, the Court finally set a limit to the kinds of equally applicable rules which could be
MEQRs. It excluded one group, which it called selling arrangements. These, it said, were simply
outside the scope of the Treaty, as long as they were in fact equal in impact on both domestic
goods and imports.
Joined Cases 267/91268/91 Keck and Mithouard [1993] ECR I-6097

11. By virtue of Article [34 TFEU], quantitative restrictions on imports and all measures having equivalent
effect are prohibited between Member States. The Court has consistently held that any measure which
is capable of directly or indirectly, actually or potentially, hindering intra-Community trade constitutes a
measure having equivalent effect to a quantitative restriction.
12. National legislation imposing a general prohibition on resale at a loss is not designed to regulate trade
in goods between Member States.
13. Such legislation may, admittedly, restrict the volume of sales, and hence the volume of sales of products
from other Member States, insofar as it deprives traders of a method of sales promotion. But the
question remains whether such a possibility is sufficient to characterize the legislation in question as a
measure having equivalent effect to a quantitative restriction on imports.
14. In view of the increasing tendency of traders to invoke Article [34 TFEU] as a means of challenging any rules
whose effect is to limit their commercial freedom even where such rules are not aimed at products from
other Member States, the Court considers it necessary to re-examine and clarify its case-law on this matter.
80
See e.g. Case C-145/88 Torfaen Borough Council v B & Q [1989] ECR 3851; Case C-169/91 Stoke-on-Trent and
Norwich City Council v B & Q [1992] ECR I-6635; for full discussion see C. Barnard, The Substantive Law of the
EU (2nd edn, Oxford, Oxford University Press, 2007) 13743.
15. It is established by the case-law beginning with Cassis de Dijon that, in the absence of harmonization
of legislation, obstacles to free movement of goods which are the consequence of applying, to goods
coming from other Member States where they are lawfully manufactured and marketed, rules that lay
down requirements to be met by such goods (such as those relating to designation, form, size, weight,
composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited
by Article [34 TFEU]. This is so even if those rules apply without distinction to all products unless their
application can be justified by a public-interest objective taking precedence over the free movement of
goods.
16. By contrast, contrary to what has previously been decided, the application to products from other
Member States of national provisions restricting or prohibiting certain selling arrangements is not
such as to hinder directly or indirectly, actually or potentially, trade between Member States within the
meaning of the Dassonville judgment, so long as those provisions apply to all relevant traders operating
within the national territory and so long as they affect in the same manner, in law and in fact, the
marketing of domestic products and of those from other Member States.
17. Provided that those conditions are fulfilled, the application of such rules to the sale of products from
another Member State meeting the requirements laid down by that State is not by nature such as to
prevent their access to the market or to impede access any more than it impedes the access of domestic
products. Such rules therefore fall outside the scope of Article [34 TFEU].
18. Accordingly, the reply to be given to the national court is that Article [34 TFEU] of the EEC Treaty is to
be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale
at a loss.
The rule that the Court lays down is that rules governing the way products are sold are
not MEQRs within the meaning of Dassonville and Article 34. States may therefore legislate
however they like on matters such as advertising, shop opening hours, sales techniques and
prices.81 However, this is subject to the proviso that the measures taken must not have a greater
effect on imports than they do on domestic goods or producers. If this is the case, then even
measures concerning selling arrangements will be MEQRs. It has been made clear in later cases
that the usual approach then applies: such measures will be prohibited unless they are justified
by a mandatory requirement or a Treaty exception.82
The reasoning provided by the Court for this position is that, it says, rules on selling arrangements do not generally have the effect of preventing access to the market for imports, nor of
impeding it any more than is the case for domestic products. If a shop has to close on Sundays,
or advertising of certain goods is prohibited, this does not actually prevent those goods being
sold. It may have some effect on their sales, but in general this effect is the same for domestic
and foreign goods. The implicit contrast is with product rules, which do tend to prevent nonconforming products reaching the market, and which also tend to impact on foreign goods
more than domestic.
Keck therefore interprets Article 34 to prohibit two things: (i) measures which have a greater
effect on imports than on domestic products, and (ii) measures which effectively prevent certain
81
82
See below nn. 978 for examples of the range of selling arrangements.
See e.g. Case C-20/03 Burmanjer [2005] ECR I-4133; Case C-441/04 A-Punckt Schmuckhandels [2006] ECR
I-2093.
imports from being sold.83 This second category does not appear to be dependent upon showing any unequal effect, although it may be argued that in practice the complete exclusion of a
class of goods from the marketplace almost invariably has the effect of protecting established,
usually national, alternatives.
Keck therefore broadly reflects an inequality-based understanding of Article 34. It is for this
reason that Alfa Vita, discussed above,84 is so surprising: the measure involved was argued
neither to be unequal in effect, nor to prevent access completely, but merely to reduce sales.
Alfa Vita and Keck apply to different categories of measures, so there is no hard conflict, but
there is a conceptual inconsistency. It is as if the idea of an MEQR underlying the law on selling arrangements is not the same as that underlying the law on other types of MEQR. This
highlights the ongoing policy tensions surrounding Article 34, between those who would like
to see it used to reduce all unjustified regulatory inhibition of economic activity (Alfa Vita),
and those who remain attached to a non-discrimination rule (Keck).
Keck is, and has always been, a controversial case, largely because its business sense has
been doubted.85 In reality, it has been argued, rules on advertising may have a greater effect
on sales of goods than some product rules do. Adapting a product is not always expensive
or difficult, while there may be contexts where an inability to advertise, or to sell via certain
channels, or to offer certain kinds of discounts (all of which are selling arrangements) might
seriously undermine a marketing campaign and make market access impractical. Keck is often considered to be a very formalist approach to Article 34. Instead of trying to distinguish
between rules according to their actual effect on trade, it divides them into convenient, but
somewhat arbitrary, groups which do not correspond to practical importance for the trader.
The advantage of Keck is that it is relatively clear. In most cases it is easy to distinguish between a selling arrangement and a product rule, and both states and market actors are able to
determine what their legal position is. An alternative interpretation of Article 34 which is sometimes put forward is that it should prohibit all measures which substantially restrict market access. This interpretation is very close to the goals of the Article, and has an obvious integrationist
appeal, but would result in a very open and vague rule. It is, moreover, open to question whether
such an open norm would be effective in practice because it would be so difficult to apply in an
apparently apolitical way, perhaps causing national judges to be shy of using it forcefully.86
There is also a principled defence of Keck. Unlike product rules, selling arrangements do not
impose a double burden on imports, nor do selling arrangements require products to be adapted at all, so there is no question of excluding non-conforming goods. There is a fundamental
difference between the market effects of selling arrangements and the market effects of product
rules, which does not make it entirely obvious that they should be treated in the same way.
Keck also needs to be seen in constitutional terms given the important limit it sets to the
Unions capacity to second-guess state regulatory choices. Maduros constitutional interpretation of Keck has been one of the most influential.87 He notes that when states regulate
83
84
85
86
87
Keck and Mithouard, above n. 2, paras. 16 and 17.

See p. 751.
L. Gormley, Two Years after Keck (1996) 19 Fordham International Law Journal 866; Weatherill, above n. 26. Cf.
L. Rossi, Economic Analysis of Article 28 after the Keck Judgment (2006) 7(5) German Law Journal 479.
See D. Wilsher, Does Keck Discrimination Make Any Sense? An Assessment of the Non-discrimination Principle
within the European Single Market (2008) 33 ELRev. 3.
M. Poiares Maduro, We the Court (Oxford, Hart, 1998).
economic activity this does not only have an effect on domestic actors, but also on foreign
ones who want to participate in the domestic market. Yet, while domestic actors are represented in the law-making process via national democratic institutions, foreign actors, in general,
are not. States therefore impose costs on non-domestic actors without taking this into account.
In the context of an integrating Union in which states accept a certain degree of responsibility towards each other, this should be seen as a democratic problem. The justification for the
Courts intervention in national economic regulation is therefore that it safeguards the interests
of the unrepresented foreign actor.
This logic explains Cassis, because when states regulate products they usually produce legislation reflecting local production norms established tastes and products and do not consider
what is accepted or usual elsewhere, with the effect that their legislation tends to have a protectionist effect. However, where selling arrangements are concerned this is not the case. The
legislator makes a trade-off between economic freedom and other interests, but in general the
interests and concerns of the importer are exactly the same as those of the domestic producers.
Both want, for example, freedom to advertise and set prices, and both want this for the same
reasons. If the domestic producers are represented in the domestic democratic process then this
serves as an adequate proxy for foreign producers, and there should usually be no need for a
democratically-justified correction of national law by the Court of Justice.
In any case, Keck has resisted criticism from many commentators and is still a pillar of the
Courts case law. Its apparent clarity and ease of use are among the major reasons for its resilience. Yet, while most of the time it is fairly easy to see whether a measure is a selling arrangement and whether it has an unequal effect, there are cases where this becomes very difficult.
Recently the Court has seemed to take a slightly narrower approach to what a selling arrangement is, as if, having used Keck to limit Article 34, it now wishes to set limits to Keck.88
(i) The notion of a selling arrangement

The distinction between a selling arrangement and a product rule was laid down in Familiapress.89 A product rule is a measure which requires some physical aspect of the product or its
packaging or labelling to be changed, while a selling arrangement is concerned only with the
way in which goods are sold or marketed. Measures conforming to neither definition are to be
considered under Dassonville.
The boundary between categories becomes difficult when measures are concerned with the
sale of particular types of products, for example a rule restricting sale of alcohol with a percentage above 25 per cent to licensed shops. Is that a product rule, because it is to do with the
amount of alcohol in the drink, or a selling arrangement, because it regulates the place where
the product is sold? The Court seems to find rules like this to be product rules, because the obligation or burden that they contain is specifically linked to the physical characteristics of the
product. There is thus a pressure, if not an absolute requirement, on producers to amend their
product to avoid the burdensome rule.
88
89
See P. Pecho, Good-Bye Keck: A Comment on the Remarkable Judgment in Commission v Italy (2009) 36 LIEI
257; A. Tryfonidou, Was Keck a Half-baked Solution After All? (2007) 34 LIEI 167.
Case C-368/95 Familiapress v Heinrich Bauer Verlag [1997] ECR I-3689. See also Case C-159/00 Sapod Audic
[2002] ECR I-5031.
For example, in Schwarz, an Austrian rule was in issue which prohibited the sale of unwrapped bubble gum from vending machines.90 This was said to be unhygienic. The Court
found that this was a product rule because those importers wishing to put those goods up for
sale in Austria have to package them. A producer who wanted to sell bubble gum to vending machine operators in Austria would have to make adjustments to her production process.
Similarly, in Dynamic Medien, a rule prohibiting the sale by mail order of DVDs without an
age-classification sticker was found to be a product rule, because the rule, while restricting the
method of sale, was linked to a physical part of the packaging.91
By contrast, Morellato concerned an Italian law on semi-baked bread.92 This is bread that
is bought by shops as half-baked frozen dough. The shops then finish baking it in their own
ovens. This enables them to sell warm fresh bread, without having all the facilities for making
bread from scratch. The process is quite controversial in some countries, because it threatens
the traditional artisanal baker, and enables all kinds of shops to apparently sell their own
fresh-baked bread. It was in this context that Italy required shops selling bread made by
this process to prepackage it in bags with labels clearly indicating its nature. The measures
informed the consumer, but also distinguished the bread from bread made on the premises,
which did not need to be packaged, allowing this latter to preserve some distinctive aura of
naturalness.
The Court found that the measure was a selling arrangement.
Case C-416/00 Morellato [2003] ECR I-9343

32. The distinctive feature of the main proceedings is that the product put on sale by Mr Morellato was
imported at a stage when its production process was not yet finished. In order to be able to market
the product in Italy as bread ready for consumption, it was necessary to complete the baking of the
pre-baked bread imported from France.
33. The fact that a product must, to a certain extent, be transformed after importation does not in itself
preclude a requirement relating to its marketing from falling within the scope of application of
Article [34 TFEU]. It is possible that, as in the main proceedings, the imported product is not simply a
component or ingredient of another product but in reality constitutes the product that is intended for
marketing as soon as a simple transformation process has been carried out.
34. In such a situation, the relevant question is whether the requirement for prior packaging laid down in
the legislation of the Member State of import makes it necessary to alter the product in order to comply
with that requirement.
35. In the present case, nothing in the file indicates that it was necessary for the pre-baked bread, as
imported into Italy, to be altered in order to comply with that requirement.
36. In those circumstances, the requirement for prior packaging, since it relates only to the marketing of the
bread which results from the final baking of pre-baked bread, is in principle such as to fall outside the
scope of Article [34 TFEU], provided that it does not in reality constitute discrimination against imported
products.
90
91
92
Case C-366/04 Georg Schwarz v Brgermeister der Landeshauptstadt Salzburg [2006] ECR I-10139.
Case C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ECR I-1505.
Case C-416/00 Morellato [2003] ECR I-9343.
As in Schwarz the product had to be packaged before it could be sold. There was thus a physical adjustment necessary. However, the difference was that in Schwarz the nature of the adjustment was such that it could only realistically be done by the producer. One could not expect
vending machine operators to put balls of bubble gum in individual sealed plastic bags. Schwarz
therefore imposed a production burden. However, in Morellato, there was no need for the producer of the semi-baked dough to change anything at all. While shops had to put the bread in
bags, they had no need to get those bags from the dough producers, and the packaging had
to be done by the shops, not by the producers, since, as the Court said, the production process
was incomplete when the dough was delivered it still had to be partly baked. Thus, although
Morellato is superficially similar to Schwarz and Dynamic Medien, it is very different from the
perspective of the producer of the imported product. These cases highlight that the question determining whether a measure is a selling arrangement or a product rule is whether that producer
is required, or pressured, to change some physical aspect of the product that she ships.
A variation on Morellato was offered by Alfa Vita, in which bake-off products were also
considered.93 Greek law required that vendors of these had to have all the facilities that were
required of a normal bakery, which included areas for kneading bread and a flour store. Clearly
such facilities were inappropriate in, for example, a supermarket, and the law was again an
attempt to protect traditional bakeries. The Court, however, found that this could not be considered a selling arrangement because it aimed to specify the production conditions for bakery
products. It was not, unlike Morellato, about the circumstances of sale, but rather about the
final stage of production.
On the other hand, the rule in Alfa Vita does not pressure the producer of the bake-off dough to
change their product. This is probably why the case was decided without reference to Cassis, and
not treated as a product rule. Nevertheless, the imposition of a cost imposed on vendors of bakeoff bread (they had to maintain facilities) might tend to discourage them from selling it, so that it
could have an effect on imports. Hence, it was treated as a general MEQR within Dassonville.
Finally, a number of recent cases have concerned use of goods, and whether usage rules should
be seen as selling arrangements or not. Once again, the Court seems to be choosing to confine
that category to its literal meaning. In Commission v Italy, klagaren v Mickelsson and Roos, and
Commission v Portugal, which concerned rules prohibiting the use of motorcycle trailers, jet-skis
and tinted plastic window stickers for cars respectively, the Court found Keck not to apply.94 The
reason why these rules were found to be MEQRs was discussed above.95 However, the reason why
they were not selling arrangements was not explained by the Court explicitly, and seems to be
no more complicated than the fact that they did not in fact concern the circumstances of sale.96
(ii) Unequal effect of selling arrangements

Where a selling arrangement has a greater effect on imported products than on domestic ones, it
will fall within Article 34, and will be prohibited unless justified. If it discriminates directly a justification must be sought in Article 36, while if it is equally applicable but tends as a matter of fact to
burden imports more then it may be saved by proportionate reliance on a mandatory requirement.
93
94
95
96
Case C-188/04 Alfa Vita v Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] ECR I-8135.
See above nn. 202.
See pp. 7501.
See also Case C-170/04 Klas Rosengren and Others v Riksklagaren [2007] ECR I-4071.
For some years after Keck was decided, this proviso was largely theoretical, with the Court
being reluctant to investigate whether a measure might have some unequal effect.97 There are
good reasons for this. Restrictions on selling arrangements tend to keep markets static, but
this tends to be to the advantage of incumbents and the disadvantage of market newcomers.
Since the former are often national it can be argued that most selling arrangements in fact hurt
importers most. An over-realistic approach to the proviso might therefore bring most selling
arrangements back within Article 34 and once again extend that Article beyond the judicial
and constitutional comfort zone.
Nevertheless, in several cases, most importantly De Agostini and Gourmet International,
the Court has recognised that the above logic could apply, particularly where advertising is
concerned.98 The former case concerned television advertising aimed at children, and the latter
case concerned advertising of alcohol in Sweden. Bans on these, claimed the litigants, preserved
domestic incumbents at the expense of foreign wannabe market entrants. In De Agostini, the
Court left it to the national court to decide whether the rule did, as a matter of fact, affect
importers more. By contrast, in Gourmet, it felt able to take a view itself.
Case C-405/98 Konsumentombudsmannen (KO) v Gourmet International Products AB

[2001] ECR I-1795
19. The Court has also held that it cannot be excluded that an outright prohibition, applying in one
Member State, of a type of promotion for a product which is lawfully sold there might have a greater
impact on products from other Member States.
20. It is apparent that a prohibition on advertising such as that at issue in the main proceedings not only
prohibits a form of marketing a product but in reality prohibits producers and importers from directing
any advertising messages at consumers, with a few insignificant exceptions.
21. Even without its being necessary to carry out a precise analysis of the facts characteristic of the
Swedish situation, which it is for the national court to do, the Court is able to conclude that, in the case
of products like alcoholic beverages, the consumption of which is linked to traditional social practices
and to local habits and customs, a prohibition of all advertising directed at consumers in the form of
advertisements in the press, on the radio and on television, the direct mailing of unsolicited material or
the placing of posters on the public highway is liable to impede access to the market by products from
other Member States more than it impedes access by domestic products, with which consumers are
instantly more familiar.
The key factor was the nature of the product. Alcoholic drinks are not usually bought only
on price, but also on the basis of tradition, reputation, image and brand. Market entry is very
difficult without the chance to speak directly to consumers via advertising.
Other recent examples of unequal selling arrangements include DocMorris, in which the
Court found that a prohibition on Internet sales of pharmaceutical products had an unequal effect because it was inevitably pharmacies at a distance who would be most affected, and these
97
98
See e.g. Case C-391/92 Commission v Greece (Greek milk) [1995] ECR I-1621; Joined Cases 69/93 and 258/93
Punto Casa v Sindaco del Comune di Capena [1994] ECR I-2355.
See also Case C-254/98 Schutzverband v TK-Heimdienst [2000] ECR I-151; Case C-531/07 Fachverband der Buchund Medienwirtschaft, Judgment of 30 April 2009; Case C-20/03 Burmanjer [2005] ECR I-4133; Case C-441/04
A-Punckt Schmuckhandels [2006] ECR I-2093; Case C-322/01 Deutscher Apothekerverband v DocMorris [2003]
ECR I-14887; see also Case C-71/02 Karner [2004] ECR I-3025.
were most likely to be foreign.99 The physical pharmacy, inevitably domestic, was protected
from pharmacies abroad wishing to supply products from other states. Most recently, in Fachverband, the Court found that minimum book prices deprived imports, which might otherwise
be cheaper than domestic goods, of an important competitive advantage.100 Although the goal
of the rule, protecting cultural diversity, was legitimate, a uniform price for domestic books
and imports was disproportionate. The Court found that a minimum price could be set for imports, but it had to be one which reflected the possibility of cheaper production abroad.
5 ARTICLE 35 TFEU AND RESTRICTIONS ON EXPORTS

Article 35 is the equivalent of Article 34 for exports, and provides:
Quantitative restrictions on exports, and all measures having equivalent effect, shall be
prohibited between Member States.
The leading case until recently was Groenveld, which concerned a ban on the possession of
horsemeat by sausage makers in the Netherlands.101 This was to make Dutch sausages acceptable
in states where horsemeat was prohibited, by removing any risk of contamination. The measure
was therefore aimed at protecting exports. However, a sausage producer who wanted to branch
out into horsemeat sausages attempted to overturn the rule by claiming that it contravened
Article 35. Since he could not possess horsemeat, he could not export horsemeat sausages.
Although the Dutch rule could be conceived of as a product rule in the Cassis sense, limiting
the way sausages are produced, the Court found that the measure fell outside Article 35, since
it applied to all producers and products, whether aimed for the domestic market or for export:
7. That provision concerns national measures which have as their specific object or effect the
restriction of patterns of exports and thereby the establishment of a difference in treatment
between the domestic trade of a Member State and its export trade in such a way as to provide
a particular advantage for national production or for the domestic market of the state in
question at the expense of the production or of the trade of other Member States.
This made clear that Article 35 has its own logic, and Article 34 reasoning cannot simply
be transposed. A measure within Article 35 must provide some specific disadvantage for exports, by comparison with goods sold domestically, thereby encouraging domestic sales at the
expense of export sales.
An example is Ravil, which concerned Italian rules on the sale of grated cheese.102 The specific cheese in question, Grana Padano, could only be sold under that name in grated form if
it had been grated within the region of production. If it was exported whole, and grated abroad,
the name could not be used. This rule was enforced by means of bilateral conventions with
other states, and it was one such with France that was at the centre of the case. The Court found
that this was an Article 35 MEQR because it treated cheese which had been transported across
a border for grating differently from cheese which had been transported within the Grana
99
100
101
102
Case C-322/01 Deutscher Apothekerverband v DocMorris [2003] ECR I-14887.

Case C-531/07 Fachverband der Buch- und Medienwirtschaft, Judgment of 30 April 2009.
Case 15/79 Groenveld BV v Produktschap voor Vee en Vlees [1979] ECR 3409.
Case C-469/00 Ravil v Bellon Import [2003] ECR I-5053; see also Case C-388/95 Belgium v Spain [2000]
ECR I-3123.
Padano region of Italy for grating, grating often being done not by the cheese producer but by
the large retail firms who package and sell the grated cheese to consumers.
By contrast, Gybrechts concerned a rule which applied without distinction between domestic
sale and exports yet which the Court nevertheless found to be within Article 35.103 It had long
been assumed that equally applicable rules were not within Article 35, as a result of comments
in Groenveld and the result in that case. It is now clear that this assumption was mistaken. Even
an equally applicable rule may, as a matter of fact, disadvantage exports relative to domestic
sales, contrary to Article 35.104
The rule in Gysbrechts prohibited those selling goods at a distance, for example by Internet,
from requiring buyers to pay in advance or even to provide details of their payment card.
Buyers were only required to pay once they had received the goods. This, of course, created a
significant risk of non-payment. However, it is far simpler and cheaper for a firm to pursue a
domestic customer for payment than one abroad. Thus, this rule had a more discouraging effect
on sales abroad than on domestic sales.
Case C-205/07 Gysbrechts, Judgment of 16 December 2008

40. In that regard, the Court has classified as measures having equivalent effect to quantitative restrictions
on exports national measures which have as their specific object or effect the restriction of patterns
of exports and thereby the establishment of a difference in treatment between the domestic trade of
a Member State and its export trade in such a way as to provide a particular advantage for national
production or for the domestic market of the State in question, at the expense of the production or of
the trade of other Member States.
41. In the main proceedings, it is clear, as the Belgian Government has moreover noted in its written
observations, that the prohibition on requiring an advance payment deprives the traders concerned of
an efficient tool with which to guard against the risk of non-payment. That is even more the case when
the national provision at issue is interpreted as prohibiting suppliers from requesting that consumers
provide their payment card number even if they undertake not to use it to collect payment before expiry
of the period for withdrawal.
42. As is clear from the order for reference, the consequences of such a prohibition are generally more
significant in cross-border sales made directly to consumers, in particular, in sales made by means of
the Internet, by reason, inter alia, of the obstacles to bringing any legal proceedings in another Member
State against consumers who default, especially when the sales involve relatively small sums.
43. Consequently, even if a prohibition such as that at issue in the main proceedings is applicable to all
traders active in the national territory, its actual effect is nonetheless greater on goods leaving the
market of the exporting Member State than on the marketing of goods in the domestic market of that
Member State.
44. It must therefore be held that a national measure, such as that at issue in the main proceedings,
prohibiting a supplier in a distance sale from requiring an advance or any payment before expiry of the
period for withdrawal constitutes a measure having equivalent effect to a quantitative restriction on
exports. The same is true of a measure prohibiting a supplier from requiring that consumers provide
their payment card number, even if the supplier undertakes not to use it to collect payment before
expiry of the period for withdrawal.
103
104
Case C-205/07 Gysbrechts [2008] ECR I-9947.

A. Dawes, A Freedom Reborn? The New Yet Unclear Scope of Article 29 (2009) 34 ELRev. 639.
Article 35 therefore applies to all national measures which tend to make export sales more
difficult or burdensome than domestic sales, whether or not this is by direct discrimination or
simply as a matter of fact.105 However, as with Article 34, equally applicable measures hindering exports may in principle be permitted if they are necessary to meet some mandatory
requirement and are proportionate. In Gysbrechts, the Court found the prohibition on advance
payment to be justified by consumer protection, while the prohibition on even asking for a
payment card number was held to be disproportionate.
Finally, in Jersey Potatoes, the Court ruled that measures hindering the movement of potatoes from Jersey to the United Kingdom were contrary to Article 35.106 The oddity of the case is
that Jersey is not an independent Member State, and free movement of goods law only applies
to it via a Protocol as a result of its special ties with the United Kingdom. For the purposes of
EU law, UKJersey trade is not cross-border.107 However, the Courts reasoning was that the
potatoes sent to the United Kingdom might in some cases be exported on to other Member
States. Extrapolating the reasoning it would seem that internal barriers to movement may fall
within Article 35 where they may hinder export by, for example, making access to ports or
roads more difficult.108
FURTHER READING
C. Barnard, Fitting the Remaining Pieces into the Goods and Persons Jigsaw (2001) 26 European
Law Review 35
S. Enchelmaier, The Awkward Selling of a Good Idea, or a Traditionalist Interpretation of Keck
(2003) 22 Yearbook of European Law 259
H.-C. von Heydebrand u.d. Lasa, Free Movement of Foodstuffs, Consumer Protection and Food
Standards in the European Community: Has the Court got it Wrong? (1991) 16 European Law
Review 391
P. Oliver and S. Enchelmaier, Free Movement of Goods: Recent Developments in the Case Law (2007)
44 Common Market Law Review 649
N. Reich, The November Revolution of the European Court of Justice: Keck, Meng and Audi
Revisited (1994) 31 Common Market Law Review 459
A. Tryfonidou, Was Keck a Half-baked Solution After All? (2007) 34 Legal Issues of Economic
Integration 167
S. Weatherill, After Keck: Some Thoughts on How to Clarify the Clarification (1996) 33 Common
Market Law Review 885
Recent Case Law Concerning the Free Movement of Goods: Mapping the Frontiers of Market
Deregulation (1999) 36 Common Market Law Review 51
J. Weiler, The Constitution of the Common Market Place: The Free Movement of Goods in P. Craig
and G. de Brca (eds.), The Evolution of EU Law (Oxford, Oxford University Press, 1999) 349
D. Wilsher, Does Keck Discrimination Make Any Sense? An Assessment of the Non-discrimination
Principle within the European Single Market (2008) 33 European Law Review 3
105
106
107
108
See Case C-12/02 Grilli [2003] ECR I-11585.

Case C-293/02 Jersey Potatoes [2005] ECR I-9543.
See P. Oliver and S. Enchelmaier, Free Movement of Goods: Recent Developments in the Case Law (2007) 44
CMLRev. 649.
See similarly Joined Cases C-1/90 and C-176/90 Aragonesa [1991] ECR I-4151; Case C-72/03 Carbonati Apuani
[2004] ECR I-8027. See I. Kvesko, Is There Anything Left Outside the Reach of the European Court of Justice?
(2006) 33 LIEI 405.

Chalmers Et Al Ch.18 Free Movement MEQR

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Chalmers Et Al Ch.18 Free Movement MEQR

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18

The Free Movement of Goods

(ii) Mandatory requirements

3 Product Standards and Cassis de Dijon

745 The Free Movement of Goods

746 European Union Law

2 GENERAL DEFINITION OF A MEASURE EQUIVALENT

747 The Free Movement of Goods

748 European Union Law

749 The Free Movement of Goods

(ii) Limits of the notion of an MEQR

750 European Union Law

Case C-110/05 Commission v Italy, Judgment of 10 February 2009

Case C-142/05 klagaren v Mickelsson and Roos, Judgment of 4 June 2009.

751 The Free Movement of Goods

752 European Union Law

(iii) Form of an MEQR

753 The Free Movement of Goods

754 European Union Law

Case C-379/92 Peralta [1994] ECR I-3453

755 The Free Movement of Goods

(v) The internal situation

Case C-98/86 Mathot [1987] ECR 809.

756 European Union Law

Case C-321/94 Pistre [1997] ECR I-2343

757 The Free Movement of Goods

(vi) Article 34 TFEU and private actors

Case 249/81 Commission v Ireland [1982] ECR 4005

758 European Union Law

Case C-112/00 Schmidberger v Republic of Austria [2003] ECR I-5659

Case C-325/00 Commission v Germany (CMA) [2002] ECR I-9977.

759 The Free Movement of Goods

760 European Union Law

3 PRODUCT STANDARDS AND CASSIS DE DIJON

761 The Free Movement of Goods

Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fr Branntwein

See Chapter 16.

762 European Union Law

763 The Free Movement of Goods

(i) Mutual recognition

See Chapter 16.

764 European Union Law

765 The Free Movement of Goods

766 European Union Law

(ii) Mandatory requirements

767 The Free Movement of Goods

(a) Consumer protection

Case 178/84 Commission v Germany (German beer) [1987] ECR 1227

See Chapter 21.

768 European Union Law

769 The Free Movement of Goods

770 European Union Law

Case C-184/96 Commission v France [1998] ECR I-6197

Case 113/80 Commission v Ireland (Irish souvenirs) [1981] ECR 1625.

771 The Free Movement of Goods

(b) Protection of the environment

772 European Union Law

Case C-309/02 Radlberger Getrnkegesellschaft mbH & Co. v Land Baden-Wrttemberg

773 The Free Movement of Goods

4 SELLING ARRANGEMENTS AND KECK

Joined Cases 267/91268/91 Keck and Mithouard [1993] ECR I-6097

774 European Union Law

775 The Free Movement of Goods

Keck and Mithouard, above n. 2, paras. 16 and 17.