Problem 5
When does national regulatory legislation (i.e. legislation of non-tariff nature) hinder the
free movement of goods within the EU?
Non-tarrif restrictions or barriers toe the free movement of goods are contrary to Article 34
TFEU, which prohibits restrictions on imports, Article 35 TFEU, which prohibits restrictions on
exports.
Article 34 TFEU prohibits quantitative restrictions on imports and all measures having
equivalent effect. Quantitative import restrictions include import quotas and import bans,
which are essentially quotas that have been reduced to zero. The application of Article 34
TFEU focuses mainly on measures having equivalent effect (MEEs). It is important to stress
here that this refers to measures having equivalent effect to quantitative import restrictions.
Bases on Dassonville, MEEs have to be understood to include: all trading rules enacted by
Member States which are capable of hindering, directly or indirectly, actually of potentially,
intra-Community trade.
Double burden theory: according to this theory, any rule imposed by a member state that
contains a requirement in respect of products that deviates from a requirement based on
the laws of the member state where the product originates, constitutes an MEE. The
rationale bhind the double burden is thus the facilitation of market access for products form
other member states. This focus on market access is clearly apparent in Italian Trailers and
Mickelsson and Roos. In both cases, the Court of Justise was required to express its opinion
on a national rule concerning the use of trailers with mopeds and motorcycles. In the second
case, the Swedisch government had imposed restraints on the use of jet-skis, in part by
restricting the waters on whether there national regulations of use had a considerable
influence on the behavior of consumers, which in turn might have a negative impact on the
access of each product to the market of the relevant member state.
Fra.bo horizontal direct effect.
Strawberries action against France under Article 258 TFEU for failure to fulfil an obligation
under the Treaties. In this Case, the Commission accused France of having violates the
principle of cooperation in good faith in conjunction with Article 34 TFEU by not taking
sufficient measures to prevent the (violent) protests of French farmers against Spanish
strawberries and other products.
The broad definition of what constitutes an MEE also includes measures that are not
specifically intended to prevent the import of certain goods but do aim to protect specific
(national) interests.
Exceptions
Keck and mithouard: concerning a prohibition on reselling goods at a loss, the so-called Keck
exception was created for national provisions on selling arrangements. This exception to the
scope of Article 34 TFEU applies to:
National provisions restricting or prohibiting certain selling arrangements… so long as those
provisions apply to all relevant traders operating within the national territory and so long as
When does national regulatory legislation (i.e. legislation of non-tariff nature) hinder the
free movement of goods within the EU?
Non-tarrif restrictions or barriers toe the free movement of goods are contrary to Article 34
TFEU, which prohibits restrictions on imports, Article 35 TFEU, which prohibits restrictions on
exports.
Article 34 TFEU prohibits quantitative restrictions on imports and all measures having
equivalent effect. Quantitative import restrictions include import quotas and import bans,
which are essentially quotas that have been reduced to zero. The application of Article 34
TFEU focuses mainly on measures having equivalent effect (MEEs). It is important to stress
here that this refers to measures having equivalent effect to quantitative import restrictions.
Bases on Dassonville, MEEs have to be understood to include: all trading rules enacted by
Member States which are capable of hindering, directly or indirectly, actually of potentially,
intra-Community trade.
Double burden theory: according to this theory, any rule imposed by a member state that
contains a requirement in respect of products that deviates from a requirement based on
the laws of the member state where the product originates, constitutes an MEE. The
rationale bhind the double burden is thus the facilitation of market access for products form
other member states. This focus on market access is clearly apparent in Italian Trailers and
Mickelsson and Roos. In both cases, the Court of Justise was required to express its opinion
on a national rule concerning the use of trailers with mopeds and motorcycles. In the second
case, the Swedisch government had imposed restraints on the use of jet-skis, in part by
restricting the waters on whether there national regulations of use had a considerable
influence on the behavior of consumers, which in turn might have a negative impact on the
access of each product to the market of the relevant member state.
Fra.bo horizontal direct effect.
Strawberries action against France under Article 258 TFEU for failure to fulfil an obligation
under the Treaties. In this Case, the Commission accused France of having violates the
principle of cooperation in good faith in conjunction with Article 34 TFEU by not taking
sufficient measures to prevent the (violent) protests of French farmers against Spanish
strawberries and other products.
The broad definition of what constitutes an MEE also includes measures that are not
specifically intended to prevent the import of certain goods but do aim to protect specific
(national) interests.
Exceptions
Keck and mithouard: concerning a prohibition on reselling goods at a loss, the so-called Keck
exception was created for national provisions on selling arrangements. This exception to the
scope of Article 34 TFEU applies to:
National provisions restricting or prohibiting certain selling arrangements… so long as those
provisions apply to all relevant traders operating within the national territory and so long as
