This document provides an overview of European Union law regarding quantitative restrictions and measures having an equivalent effect on imports and exports between EU member states. It defines quantitative restrictions as non-pecuniary restrictions on trade between states. The document outlines key cases that have established and clarified the scope of Articles 34 and 35 of the TFEU, which prohibit quantitative restrictions and measures equivalent to quantitative restrictions. It discusses what constitutes a measure having an equivalent effect, exceptions under Article 36, and the concept of "indistinctly applicable rules" established in Cassis de Dijon. The document also addresses selling arrangements and the Keck doctrine, which established that certain selling arrangements fall outside the scope of Article 34.

1. European Union Law
Free Movement of Goods: Quantitative Restrictions
Quantitative Restrictions

2. Question:
! What are “quantitative restrictions” and why do
they matter?
Answer:
! They involve non-pecuniary restrictions. By
contrast, customs duties and internal taxes
(which are also prohibited) involve pecuniary
charges.

3. Article 34 TFEU:
! “Quantitative restrictions* on imports and all
measures having equivalent effect shall be
prohibited** between Member States.”
* “[M]easures which amount to a total or partial
restraint of, according to the circumstances, imports,
exports or goods in transit” (Case 2/73 Geddo v Ente
Nazionale Risi [1973] ECR 865). Applies to measures by
Member States – not private parties.
** There are no exceptions aside from those in Art. 36
TFEU
Article 35 TFEU:
! “Quantitative restrictions on exports, and all
measures having equivalent effect, shall be
prohibited between Member States.”

4. Article 36 TFEU:
! “The provisions of Articles 34 and 35 shall not preclude
prohibitions or restrictions on imports, exports or goods in
transit justified* on grounds of public morality, public
policy** or public security; the protection of health and
life of humans, animals or plants; the protection of
national treasures possessing artistic, historic or
archaeological value; or the protection of industrial and
commercial property. Such prohibitions or restrictions shall
not, however, constitute a means of arbitrary
discrimination or a disguised restriction on trade between
Member States.”
* Must be proportional & least restrictive to attain goal. This
is an exhaustive and complete list – these are only
exceptions that can justify direct or indirect discrimination
that otherwise violates Art. 34.
** Does not include consumer protection
Question:
! What are “measures having equivalent effect to
quantitative restrictions” or MEQR?

5. Former Directive 70/50:
Examples of MEQRs:
! Maximum/minimum price for imports
! Less favourable prices for imports
! Increased costs for imports
! Different requirements for packaging, composition,
identification, size, weight for imports
! Preferences for purchase of domestic goods
! Limiting publicity for imports v domestics
! Stocking requirements for imports that are more
difficult than for domestics
! Requiring importers to have agent in territory
Case 8/74 Procurer du Roi v
Dassonville [1974] ECR 837
! Facts
! Procedural History
! Holding
! Rationale

6. Dassonville:
! “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.” (para. 5)
! MEQR

7. Dassonville:
! “In the absence of a Community system
guaranteeing for consumers the authenticity of a
product’s 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”
! “Rule of Reason”
Exs. of Article 34 in Action:
! Barred Italian rule requiring imported cars to
register in a way that was longer and more
complicated than registration for domestic cars
(Case 154/85 Commission v Italy [1987] ECR 2717)
! Barred UK rule that required imports to be
marked with country of origin (Case 207/83
Commission v UK [1985] ECR 1201)
! Barred Irish rule requiring jewelry and souvenirs
made in other MS to be marked as
“foreign” (Case 113/80 Commission v Ireland
[1981] ECR 1625)

8. More Exs. of Art. 34:
! Setting minimum price for imported books sold in
Austria but without any such minimum for
domestic publishers (Case C-531/07
Fachverband)
! Requiring a roadworthy test for an imported car
that has never been used so cannot possibly be
damaged (Case 50/85 Schloh v Auto Controle
Technique [1986] ECR 1855)
! Applies to actions by Member States – not private
parties – but this can include a MS failing to act
against private parties, e.g. French farmers
threatening these rights in strawberries case
Case 249/81 Commission v
Ireland [1982] ECR 4005
(“Buy Irish”)
! Facts
! Procedural History
! Holding
! Rationale

9. Exs. of Art. 35 in Action:
! Barred French rule that required quality check for
exported watches but not for domestic watches
(Case 53/76 Procureur de la Republique
Besancon v Bouhelier [1977] ECR 197)
! Barred Belgian law that required suppliers to get
payment card number from consumers in distant
locations because this had greater effect on
goods leaving Member State for export (Case
C-205/07 Lodewijk Bysbrechts and Santurel Inter
BVBA [2008] ECR I-9947)
Exs. of Art. 36 in Action:
! UK’s ban on poultry imports from MS where poultry
not slaughtered when Newcastle disease detected
resulted in French turkeys denied entry up to
Christmas (as urged by UK poultry traders) not
justified under Art. 36 – public health – because
disguised restriction on trade (Case 40/82
Commission v. UK [1982] ECR 2739).
! UK’s bar on pornography imports from Holland
justified under Art. 36 - public morality (Case 34/79 R
v Henn and Darby [1979] ECR 3795)
! UK’s ban on imported blow-up “love love dolls”
from Germany not justified under Art. 36 – public
morality – because no prohibition in UK on making
or selling dolls (Case 121/85 Conegate Ltd v
Commissioners of Customs and Excise [1986] ECR
10007)

10. More Exs. of Art. 36:
! Italian law prohibiting motorcycles from towing
trailers (even when they are designed to do so)
justified under public safety (Case C-110/05
Commission v Italy [2009] ECR I-519)
! “Public policy” can serve as a justification under Art.
36 but ECJ rejected it when France failed to show
how “public order” (law and order) would be
jeopardized without minimum retail prices for fuel
(Leclerc decision)
! “Public security” justified Ireland’s requirement that
importers of petrol buy 35% of requirements from
state-owned refinery to safeguard Ireland’s
“existence” and “energy source” (Case 72/83
Campus Oil Ltd v Minister for Industry and Energy
[1984] ECR 2727)
More Exs. of Art. 36:
! Marketing of German muesli bars with vitamins
can be barred in Holland on grounds of “public
health” due to concerns over excess vitamin
consumption as long as restriction is proportional
(Sandoz decision)

11. Indistinctly Applicable Rules
What Are “Indistinctly
Applicable” Rules?
! Rules about how to market a product (e.g.
based on presentation, size, shape, size, weight)
that have a restrictive effect on free trade that
outweighs any benefits
! Art. 34 TFEU bars “indistinctly applicable” rules
that obstruct free trade, i.e., imports, even if they
do not directly discriminate
! There is no equivalent bar for indistinctly
applicable rules obstructing the freedom to
export under Art. 35 TFEU –Art. 35 TFEU only bars
direct discrimination

12. Case 120/78 Rewe-Zentral
AG v
Bundesmonopolverwaltung
fur Branntwein [1979] ECR
649 (“Cassis de Dijon”)
! Facts
! Procedural History
! Holding
! Rationale
Cassis de Dijon:
! Article 34 TFEU applies to rules that do not directly
discriminate against imports – and which apply
without distinction to all products - but obstruct
trade
! Goods made in one MS should be admitted into
another MS for sale unless the MS importing the
goods has “mandatory requirements” that indirectly
obstruct the imported goods. Any restrictions must
be justified as reasonable measures – “rule of
reason”.
! Asserts mutual recognition of goods made in
another MS

13. Cassis de Dijon:
! “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 in so far 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.”
“Mandatory Requirements”:
! Include: fiscal supervision; protection of public
health; fairness of commercial transactions;
consumer protection; others. This is not an
exhaustive list.
! May justify national rules that would otherwise
violate Art. 34 TFEU. They are in addition to and
separate from the justifications listed in Art. 36.
! Only for equally applicable measures that cause
differential treatment. Do not apply to measures
causing direct discrimination or indirect
discrimination (although difference between
indistinctly applicable requirements and indirect
discrimination may be hard to discern).

14. Mandatory Requirements in
Action:
! Laws that forbid stores from selling products on
Sundays have “objective justifications” in “public
interest” to support economic and social policy of
country and respect political and economic
choices regarding opening hours (Case 145/88
Torfaen BC v B&Q plc [1989] ECR 3851)
! French law banning sale/rent of movies within first
year of release was objectively justified by French
policy to encourage people to go to cinema (Cases
60 and 61/84 Cinetheque SA v Federation Nationale
des Cinemas Francais [1985] ECR 2605)
Unsuccessful Attempts to
Rely on “Mandatory
Requirements”:
! France’s prosecution of importer of Edam cheese
containing 34.3% fat instead of 40% fat not justified by
“mandatory requirements” (Case 286/86 Ministere Public v
Deserbais [1988] ECR 4907)
! Italy prosecution of importers of apple vinegar from
Germany not made from wine fermentation not justified
by “mandatory requirements” because proper labeling
could warn customers (Case 788/79 Italian State v Gilli
and Andres [1980] ECR 2071)
! Germany’s law that “bier” only used for drinks made of
barley, hops, yeast, water not justified for consumer
protection because other ways, e.g., “suitable labels” for
protecting consumers aside from total ban on imports
(Case 178/84 Commission v Germany [1987] ECR 1227)

15. Proportional
! Any objective justifications based on mandatory
requirements must be proportional
! In the Mars decision [1995] ECR I-1983 –
Germany’s ban on imported Mars ice cream
bars with packaging that said “+10%” was not
justified as consumer protection where there was
mere possibility that consumers would be misled
and total ban on these imports from France was
not proportional.
Selling Arrangements

16. Question:
! What is a “selling arrangement” and why is it
important for EU law?
Case C-267 and 268/91
Criminal Proceedings
against Keck and
Mithouard [1993] ECR I-6097
! Facts
! Procedural History
! Holding
! Rationale

17. Keck:
! Involved a method of sales promotion (ie
reselling goods at a price lower than their cost)
that was prohibited in France
Keck:
! “[T]he 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 (Case 8/74 [1974] ECR 837) so
long as those provisions apply to all affected traders
operating within the national territory and so long as
they affect in the same manner, in law and fact, the
marketing of domestic products and of those from
other Member States. … Such rules therefore fall
outside the scope of Article [34] of the
Treaty.” (Paragraphs 16 - 17)

18. Keck:
To recap, selling arrangements fall outside Art. 34
TFEU as long as they:
! (i) apply equally to all traders operating within
the national borders and
! (ii) affect in the same manner, in law and fact,
the marketing of domestic products and
products from other Member States
Exs. of “Certain Selling
Arrangements” Falling
Outside Art. 34:
! Italian law closing retail outlets on Sundays
! Rule barring pharmacies from advertising certain
products
! Types of premises on which goods may be sold
! Ways in which a product is marketed, e.g.
advertisements or free offers
! Swedish law barring TV ads at kids under 12 (De
Agostini decision)

19. Case C-405/98
Konsumentombudsmannen
v Gourmet International
Products AB [2001] ECR
I-1795
! Swedish ban on alcohol ads in magazines, radio,
TV violated Art. 34 TFEU
! Did not fall outside Art. 34 under Keck because
they affected foreign products more than
domestic products
! “traditional social practices” and “local habits
and customs” caused Swedes to prefer domestic
alcohol (e.g., Absolut)
Analysis

20. Ways to Analyze a Situation:
1. Identify the national measure
2. Identify which freedom is at stake – free
movement of goods, free movement of services
or establishment, free movement of capital, free
movement of workers – or determine whether the
situation falls outside the four freedoms, e.g., a
selling arrangement under Keck
3. If one of the freedom sis impeded by the national
measure, is there any justification for the
restriction?
4. If so, is the restriction proportionate to the end
sought to be achieved? Is there a way of
achieving the same end which is less restrictive?
Next …
! Free movement of capital on Tuesday, February
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