Article 34 TFEU (ex 28 EC; ex 30)

Quantitative restrictions on imports and all

measures having equivalent effect shall be
prohibited between Member States
Art 35 TFEU (ex 29): exports
Art 36 TFEU (ex 30): exceptions
Public morality, policy, security
Human health, animals, plants
National treasures
Industrial and commercial policy

Directive 1970/50

Case 8/74, Dassonville [1974] ECR

837
Certificate of origin requirement
Importation of whisky from France
Dassonville formula:
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 meqrs

No arbitrary discrimination or disguised restriction

Indirect importer difficulty

Cert requirement an meqr

Case 249/81, Commission v Ireland

[1982] ECR 4005

Buy Irish campaign

MEQR?
IGC Appointments and funding
Import data
Not a measure?
Held to be MEQR
Matter of substance, not form

Case 120/78, Cassis [1979] ECR

649

Importation of liqueur into Germany

Alcoholic strength requirement
Mandatory requirements
Consumer protection
Commercial fairness

German arguments: health & consumers

Labelling disclosures
German rules contrary to Art 34 TFEU
Principle of mutual recognition

Cassis, paras. 13 & 14

[] it is a simple matter to ensure that
suitable information is conveyed to the
consumer by requiring the display of an
indication of origin and of the alcohol
content on the packaging of products.
There is therefore no valid reason why,
provided they have been lawfully
produced and marketed in one of the MS,
alcoholic beverages should not be
introduced into any other MS

Case 298/87, Smanor [1988] ECR

4489

French rules on yoghurt marketing

Wholly internal situation & Art 34 TFEU
Consumer protection argument
Substantial difference test
Codex standards
MS rules

Labelling more proportionate response

Cases 60 & 61/84, Cinthque

[1985] ECR 2605

French cinema to video rules

Claimed contrary to Art 34 TFEU
Purpose not to regulate trade or favour national
Does create barriers justification required
Must be non-discriminatory & proportionate
French rules justifiable equal burden
Caught by but compatible with Art 34 TFEU
(AG Slynn Opinion)

AG Slynn Cinthque
"... where a national measure is not
specifically directed at imports, does not
discriminate against imports, does not
make it any more difficult for an importer to
sell his products than it is for a domestic
producer, and gives no protection to
domestic producers, then in my view, the
measure does not fall within [Article 34
TFEU] even if it does in fact lead to a
restriction or reduction of imports.'

Case C-145/88, Torfaen v B&Q

[1989] ECR 3851

UK Sunday trading rules

Imports from other MS: 10%
Claimed contrary to Art 34 TFEU
Cinthque cited: justification required
National socio-cultural characteristics
Equal burden rule no additional difficulty
Not contrary to Art 34 TFEU if proportionate

Cases C-267 & 268/91, Keck

[1993] ECR I-6097

French resale at loss rules

Rule not designed to regulate trade
May limit sales is it meqr?
Re-examination of case law
Cassis noted compositional requirements
Selling arrangements outside Dassonville
Must be non-discriminatory, law and fact
Art 34 TFEU not applicable

Cases C-69 and 258/93, Punto

Casa [1994] ECR I-2355

Italian Sunday trading rules

Dassonville cited
Keck noted
Outside Dassonville formula
apply to all traders
same impact on all traders

Art 34 TFEU not applicable

Keck qualifications
1. Selling arrangements affecting nature of
product
2. Differential impact on national traders
and those from other MS

Case C-368/95, Familiapress

[1997] ECR I-3689

Austrian rules on prize games

Claimed contrary to Art 34 TFEU
Prizes a method of sales promotion
Integral part of German magazine
Austrian rules an meqr
Potentailly justifiable - National court to
decide (press diversity)

Cases C-34, 35, 36/95, De Agostini

[1997] ECR I-3843

Swedish advertising ban

Advertising a selling arrangement
Applicable to all traders
Differential effect on marketing
Within Art 34 TFEU Market access
Possibly justifiable
Art 36 TFEU
Mandatory requirement
Proportionate