These are notes on the free movement of goods created in 2019. They follow a structured format which condenses the relevant case law, statutory provisions and academic opinion that are relevant to the topic to aid with exam revision.
Free movement of goods: Charges having equivalent effect refers to any charge
involving money that is not a customs duty in the strict
Introduction: sense, but which is imposed by reason of the fact that
To create an internal market in goods any barriers or the goods cross a border (Commission v Italy (Statistical
obstacles that obstruct their movement must be Levy)
removed Article 110 TFEU (Discriminatory Taxation)- Prohibits
Barriers can be fiscal or non-fiscal discriminatory taxes on foreign goods (such as putting
Fiscal (financial barriers) such as custom duties and heavier tax on imported products) and prohibits
discriminatory taxes. They can apply to imports and imposing a tax which creates a competitive disadvantage
exports for imported goods
Non-fiscal barriers (non-financial) such as quantitative Article 30 TFEU and Article 110 TFEU are mutually
and other measures having an equivalent effect apply to exclusive, both cannot be applied simultaneously.
imports and exports REMEMBER: Our course focuses on the quantitative
The treaties prohibit any other measures which have the restrictions on imports and measures having equivalent
same the effect on the imports as fiscal or non-fiscal effect to a quantitative restriction’
barriers to create an internal market
Non- Fiscal barriers to trade:
Article 34 TFEU- Prohibits quantitative restrictions (QR)
and measures having equivalent effect (MEQR) on
Definition of goods: imports
Commission v Italy (Italian Art)- Products which can be Article 35 TFEU- Prohibits quantitative restrictions and
measures having equivalent effect on exports
valued in money and which are capable as such as
forming the subject of a commercial transactions Article 36 TFEU- Provides exceptions/derogations to
Article 34 and 35
Jagerskiold- Goods possess tangible physical
characteristics REMEMEBER: Lectures focused more on Article 34!!!
REMEMBER: A measure must be either a QR or a MQ, it
Further examples:
cannot be both. For a problem question, you must
Case: Example of goods: identify whether the restriction is a QR or an MEQR
Commission v France Strawberries
Cassis de Dijon Alcohol Quantitative restrictions:
Henn v Darby Pornographic materials Geddo- A measure which amounts to a total or partial
Doc Morris Medication restraint on imports, exports or goods in transit
Ditlev Bluhme Bees They can include an absolute ban, total restraint or
PreussenElektra Electricity limitations on the quantity of goods
Commission v Belgium Waste Examples:
Humanplasma Blood R v Henn and Darby- An absolute ban on certain
pornographic materials
Goods can be supplied in order to provide services, in Rosengren- A Swedish ban on buying alcoholic drinks
such scenarios the central activity should be identified in over the internet where the same drinks were available
order to apply the relevant set of rules through a monopolistic national alcohol supplier
Omega Spielhallen- Foreign goods were supplied in QR’s will automatically breach Article 34 or Article 35,
order to provide certain services. The provision of unless Article 36 defences apply
services was considered to be the central activity in
question and Article 56 (Free movement of services was
applied instead of Article 34 of the TFEU Measures having equivalent effect to a quantitative
Fiscal barriers: restriction:
Article 28 (1) TFEU- The union shall comprise of a Definition of MEQR:
customs and union which shall cover all trade in goods Dassonvile- Any trading rules that are capable of
and shall involve the prohibition between member hindering, directly or indirectly, actually or potentially,
states of customs duties on imports and exports and of intra – community trade known as the Dassonville
all charges having equivalent effect formula
Article 30 TFEU- Customs duties on imports and exports The distinction between the two groups of measure is
and charges having equivalent effect shall be important when looking at the derogations or
prohibited between member states. This shall also apply justifications for breaches of Article 34
to customs duties of a fiscal nature
Article 28 and 30 prohibit customs duties and charges
Directive 70/50 states that MEQR’s can either be
having equivalent effect
distinctly or applicable measures
A customs duty refers to any tax or tariff imposed on
imported goods
, Distinctly applicable MEQR’s: The two rules may conflict and must be balanced against
Rules that do not apply equally to domestic and each other
imported products and discriminate against imports. Examples:
Examples: Commission v Italy (Cocoa products)- UK chocolate was
Firma Denkavit- Making imports more difficult or costly marketable all over the EU, so the presumption of
by imposing additional requirements for imported goods mutual recognition overruled Italy’s attempt to require
Commission v Ireland- Promoting and giving precedent it to be named ‘’chocolate substitute’’ on the basis of
to domestic goods the rule of reason
Dassonville- Restricting channels of distribution for Commission v Denmark- A Danish recycling system was
imported goods (whisky in Belgium requiring a set up for beer cans of one particular size. It was held
certificate of origin) that this was not protectionist but environmentalist, so
As with QR’s, distinctly applicable MEQR’s will breach the rule of reason prevailed
Article 34 or Article 35 unless Article 36 defences apply Cinetheque SA- French requirements that film studios
delay the video-release of their films for a certain
Indistinctly applicable MEQR’s: minimum period were acceptable as they encouraged
Measures that apply equally in law on the imported and cinema attendance. Rule of reason prevailed.
exported products but in practice have a greater impact Indistinctly applicable MEQR’s will breach Article 34
on the imported product unless Article 36 defences or Cassis de Dijon defences
Examples: apply
Walter Rau- Belgian law required margarine to be sold
in cube-shaped packages
Mars GmbH- German rules compelling the importer to
adjust the presentation of its products Selling arrangements under Article 34:
Commission v Ireland- Involved tenders that were Definition:
unnecessarily specific and that only an Irish company
could have met Selling arrangements govern who can sell particular
Cassis de Dijon- categories of products, when, where and how
There was a product requirement that set a minimum
alcohol content of 25% for beverages to be called fruit Examples:
liqueur. The French Cassis de Dijon fruit liqueur only had
Case: Selling arrangement:
15-20% alcohol content, so it could not be sold in
Boermans National rules requiring
Germany under the term fruit liqueur. petrol stations to close at
The court held that indistinctly applicable measures are night
caught under Article 34 TFEU and established two Punto Casa Sunday trading rules
central rules regarding the free movement of goods Commission v Greece National rules requiring
(Infant milk) infant milk to be sold only
in pharmacies
Two separate defences from Article 36 defences when there Libro Rules fixing the retail prices
is an infringement of article 34/35: of books
Presumption of mutual recognition:
Goods lawfully in circulation in one Member State are Cassis formula was designed to eliminate product
presumed to be marketable in other Member States requirements by replacing dual regulations with
Verein v Mars- The burden to prove otherwise is on the single regulations
Member States seeking to block the sale Torafen- Implied that the Cassis rationale could be
applied to rules concerning Sunday Trading/Selling
Arrangements (until what time the shops can
Rule of reason:
remain open)
Member states can regulate product requirements and It was necessary for the courts to define the limits
insist that national rules be applied to imported goods of Article 34 TFEU
as long as the measures satisfy one of the mandatory
requirements (protection of public health, consumer Keck v Mithouard-:
protection, environmental protection and fair Concerned a French law prohibiting the sale of
competition) goods at a prince below the wholesale purchase
Examples: price. Applicants argued that the French ban was
Walter Rau- Even if one of the mandatory requirements incompatible with Article 34 TFEU
applies, the restriction must still be necessary for Courts held that certain selling arrangements are
achieving the object sought and must also be excluded from the Dassonville formula and do not
proportionate breach Article 34 TFEU if they satisfy two conditions
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