The Single Market: Quantitative Restrictions (Goods II) KOC UNIVERSITY EU SUBSTANTIVE LAW Dr. Jorrit Rijpma Europa Institute

Relevant Treaty provisions Article 34 TFEU: Prohibition for imports Quantitative Restrictions MEQR Article 35 TFEU: Prohibition for exports Article 36 TFEU: Justifications

Overview National Measures QR ECJ Geddo MEQR ECJ Dassonville CSA ECJ Keck Breach art. 34 Art. 36 + Proportionality +fundamental rights Distinctly Applicable Indistinctly applicable + proportionality Justified by Cassis +proportionality + fundamental rights No breach of Art. 34 If para. 16 fulfilled Overview

Article 34 TFEU : Quantitative restrictions ‘... measure restricting the import, export or transit of a given product by amount or by value ...’ ‘... measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit.’ (Case 2/73, Geddo)  Case 34/79, Henn and Darby (porn): ban is most extreme form of prohibition

Quantitative Restrictions Rule: prohibition in Art. 34 TFEU Discriminatory intent not required Justifications in Article 36 TFEU

Article 36 TFEU: Exceptions 1) Pubic Morality Public Policy Public Security Protection of the health and life of humans, animals or plants Protection of national treasures possessing artistic, historic or archeological value Protection of industrial and commercial property (IP rights)

Article 36 TFEU: Exceptions Conditions: The objective of the measure is not yet achieved by EU law (absence of EU legislation) The measure pursues a legitimate objective under EU law The measure passes the test of proportionality The measure does not constitute an arbitrary discrimination or a disguised restriction to trade

Article 36 TFEU: Exceptions Closed list, strict interpretation No justifications on purely economic grounds No arbitrary discrimination, no disguised restrictions allowed A derogating measures must be proportionate a) Suitable b) Requisite (necessary)

Article 34 TFEU: MEQR Commission Directive 70/50/EEC: Article 2: distinctly applicable measures… Article 3: indistinctly applicable measures… Dassonville (1974): ‘… all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade …’ (para. 5)

MEQR: elements Enacted by the State Buy Irish (state sponsorship) R v The Pharmaceutical Society (professional regulatory bodies) Commission v France (Administrative practice) Actually or Potentially affect intra-state trade No de minimis: Commission v France (foie gras) only small part of a MS: Bluhme (Læsø bees) Directly or Indirectly affect intra-state trade Dassonville (licence for whisky) Directive 70/50 articles 2 and 3

MEQR: Distinctly applicable measures Measure applies to imported or exported goods only Examples: Promotion or favouring of domestic products Price-fixing Measures which make imports more costly

MEQR: Indistinctly applicable measures Cassis de Dijon (1979) "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" (para. 8) "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 another Member State." (para. 14)

Cassis de Dijon: essentials also non-discriminatory measures (Dassonville) Principle of mutual recognition Rule of reason – mandatory requirements

Mandatory requirements protection of public health consumer protection effectiveness of fiscal supervision fairness of commercial transactions  non-exhaustive list !!!  indistinctly applicable measures environmental protection

Keck & Mithouard “In view of the increasing tendency of traders to invoke Article 30 of the Treaty 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" (para. 14)

Keck "In ‘Cassis de Dijon’’ ... it was held that, in the absence of harmonization of legislation, measures of equivalent effect prohibited by Article 30 include obstacles to the free movement of goods where they are the consequence of applying rules that lay down requirements to be met by such goods (such as requirements as to designation, form, size, weight, composition, presentation, labeling, packaging) to goods from other Member States where they are lawfully manufactured and marketed, 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" (par. 15)

Keck "However, 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 … provided that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and fact, the marketing of domestic products and of those from other Member States." (para. 16)

Effects of Keck - dramatic deviation from previous case law - distinction between: 1) rules which relate to the goods themselves Designation - Form – Size – Composition – Presentation – Labeling - Packaging 2) rules which relate to selling arrangements Who? - Where? - When?- How?

Certain selling arrangements Measures fall outside the scope of Article 34 TFEU if: selling arrangement applicable to all traders affecting in the same manner - in law and in fact - the marketing of domestic and imported goods (para. 16 of Keck)

Judicial qualifications post Keck Familiapress (1997) If ECJ qualifies certain rules which affect selling in some manner as part of the nature of the product, Article 34 TFEU applies De Agostini (1997), Heimdienst (2000) Gourmet (2001) A selling arrangement falls within scope Article 34 TFEU when it fails conditions of para. 16 of Keck (MARKET ACCESS) Commission v Italy (2009), Mickelsson & Roos (2009) Rules on the use of a product = MEQR

In addition ! State responsible for private behaviour (Spanish strawberries) Fundamental rights as justification (Schmidberger)