Free Movement of Goods 2

19FREE MOVEMENT OF GOODS:

QUANTITATIVE RESTRICTIONS

1. central issues

i. It is necessary to understand the way in which Articles 28–31 fit into the more generalstrategy concerning the free movement of goods. Articles 23–27 lay the foundations for acustoms union by providing for the elimination of customs duties between MemberStates and by establishing a Common Customs Tariff. If matters rested there free move-ment would be only imperfectly attained. It would still be open to States to place quotason the amount of goods that could be imported, and to restrict the flow of goods by meas-ures that have an equivalent effect to quotas. The object of Articles 28–31 is to preventMember States from engaging in these strategies.

ii. The ECJ’s interpretation of Articles 28–31 has been very important in achieving single-market integration. It has given a broad interpretation to the phrase ‘measures havingequivalent effect’ to a quantitative restriction (MEQR), and has construed the idea of dis-crimination broadly to capture both direct and indirect discrimination.

iii. The ECJ has also held that Article 28 can apply even where there is no discrimination. Thefamous Cassis de Dijon case1 decided that Article 28 can bite, subject to certain exceptions,when the same rule applies to both domestic goods and imports, where the rule inhibitsthe free flow of goods within the Community. Discrimination is therefore a sufficient, butnot necessary, condition for the invocation of Article 28. There are, however, three centralproblems to be aware of in this area.

iv. First, the ECJ’s jurisprudence has led to difficult issues about where this branch of EC law‘stops’. The ECJ’s decision that Article 28 is applicable to trade rules even where they donot discriminate has led to difficulties about the outer boundaries of Community law.The law in this respect is still evolving.

v. Secondly, there is a problem concerning the relationship between negative and positiveintegration. The ECJ’s approach in Cassis de Dijon leads to ‘negative integration’: indistinctlyapplicable rules will be rendered unenforceable when they hinder cross-border tradeunless they come within one of the exceptions. Integration is essentially negative andderegulatory, in the sense that the national rules are held not to apply. This can be con-trasted with ‘positive integration’, which results from Community legislative measures,

1 Case 120/78 Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

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stipulating which rules should apply across the Community. There are, as will be seen,important consequences that flow from developing Community policy by these differingstrategies.

vi. Thirdly, there is a tension between Community integration and national regulatoryautonomy. The impact of Article 28 will often be to render national regulatory measuresinapplicable. Article 28 therefore is a tool for policing the borderline between legit-imate and illegitimate national regulation, and the nature of this border may well becontestable.2

vii. This topic exemplifies the interconnection between judicial and legislative initiatives forattaining the Community’s objectives, a theme stressed throughout this book. One wayof dealing with trade rules that differ between Member States is through legislative har-monization. The process of such harmonization was, however, slow, a difficulty exacer-bated by the requirement of unanimity in the Council.3 The ECJ’s jurisprudenceconstituted an alternative means for ensuring the free flow of goods even in the absenceof legislation which harmonized the relevant rules. The message was clear: attainment ofthis central part of Community policy was not to be held up indefinitely by the absenceof harmonization legislation. The Court’s approach to Article 28 was welcomed by theCommission, which made it clear that its own scarce resources should be best directedtowards achieving harmonization in respect of those rules which were still lawful underthe Cassis de Dijon formula, on the grounds that, for example, they were necessary toprotect consumers or safeguard public health. The judicial approach, therefore, causedthe Commission to reorient its own legislative programme.

viii. The Community Courts have also maintained tight control over the application ofArticle 30, which is concerned with defences against a prima facie breach of Article 28.The ECJ has interpreted Article 30 strictly in order to ensure that discriminatory restric-tions on the free movement of goods are not easily justified. There are however difficul-ties concerning the relationship between defences to discrimination and defences toindistinctly applicable rules.

2. introduction

The discussion in the previous chapter focused on duties, taxes, and the like. This is, however,only part of the strategy for an integrated single market. The free movement of goods is dealtwith in Articles 28–31 (ex Articles 30–36). The renumbering of the Treaty provisions pursuantto the ToA has meant that the old Article 30 is now Article 28, and the old Article 36 is nowArticle 30. Particular care is therefore required when reading case law based on the old num-bering.4 Article 28 is the central provision within this Chapter of the Treaty. It states that:

Quantitative restrictions on imports and all measures having equivalent effect shall be prohib-ited between Member States.

introduction | 667

2 W.P.J. Wils, ‘The Search for the Rule in Article 30 EEC: Much Ado About Nothing?’ (1993) 18 ELRev. 475,478; M. Maduro, We the Court, the European Court of Justice and the European Economic Constitution (Hart,1998), 54–58.

3 See Ch. 17.4 The old Arts. 31 to 33 which concerned transitional measures were repealed by the ToA.


Article 29 contains similar provisions relating to exports, while Article 30 (ex Article 36)provides an exception for certain cases in which a State is allowed to place restrictions on themovement of goods.

3. directive 70/50 and dassonville

Article 28 will catch quantitative restrictions and all measures which have an equivalent effect(MEQR). It can apply to Community measures,5 as well as those adopted by Member States.The notion of a quantitative restriction was defined broadly in the Geddo case6 to mean‘measures which amount to a total or partial restraint of, according to the circumstances,imports, exports or goods in transit’. MEQRs are more difficult to define. The Commissionand the Court have taken a broad view of such measures.

Guidance on the Commission’s view can be found in Directive 70/50. This Directive wasonly formally applicable during the Community’s transitional period, but it continues to fur-nish some idea of the scope of MEQRs. The list of matters which can constitute an MEQR arespecified in Article 2 and include:7 minimum or maximum prices for imported products; lessfavourable prices for imported products; lowering the value of the imported product byreducing its intrinsic value or increasing its costs; payment conditions for imported productswhich differ from those for domestic products; conditions in respect of packaging, compos-ition, identification, size, weight, etc., which apply only to imported goods or which aredifferent and more difficult to satisfy than in the case of domestic goods; the giving of a pref-erence to the purchase of domestic goods as opposed to imports, or otherwise hindering thepurchase of imports; limiting publicity in respect of imported goods as compared withdomestic products; prescribing stocking requirements which are different from and more dif-ficult to satisfy than those which apply to domestic goods; and making it mandatory forimporters of goods to have an agent in the territory of the importing State.

Article 2, therefore, lists a number of ways in which the importing State can discriminateagainst goods. It should be noted that, even as early as 1970, the Commission was thinking ofthe potential reach of Article 28 to indistinctly applicable rules, since Article 3 of the Directive,which will be considered below, regulates such rules to some degree.

The seminal early judicial decision on the interpretation of MEQRs is Dassonville.

Case 8/74 Procureur du Roi v. Dassonville[1974] ECR 837

[Note ToA renumbering: Art. 36 is now Art. 30]

Belgian law provided that goods bearing a designation of origin could only be imported if theywere accompanied by a certificate from the government of the exporting country certifyingtheir right to such a designation. Dassonville imported Scotch whisky into Belgium from Francewithout being in possession of the certificate from the British authorities. The certificate wouldhave been very difficult to obtain in respect of goods which were already in free circulation in

668 | free movement: quantitative restrictions

5 Case C–114/96 Criminal Proceedings against Kieffer and Thill [1997] ECR I–3629.6 Case 2/73 Geddo v. Ente Nazionale Risi [1973] ECR 865.7 Dir. 70/50 [1970] OJ L13/29, Art. 2(3).


a third country, as in this case. Dassonville was prosecuted in Belgium and argued by way ofdefence that the Belgian rule constituted a MEQR.

THE ECJ

5. All trading rules enacted by Member States which are capable of hindering, directly orindirectly, actually or potentially, intra-Community trade are to be considered as measureshaving an effect equivalent to quantitative restrictions.

6. In the absence of a Community system guaranteeing for consumers the authenticity ofa product’s designation of origin, if a Member State takes measures to prevent unfair practicesin this connection, it is however subject to the condition that these measures should be rea-sonable and that the means of proof required should not act as a hindrance to trade betweenMember States and should, in consequence, be accessible to all Community nationals.

7. Even without having to examine whether such measures are covered by Article 36, theymust not, in any case, by virtue of the principle expressed in the second sentence of thatArticle, constitute a means of arbitrary discrimination or a disguised restriction on tradebetween Member States.

8. That may be the case with formalities, required by a Member State for the purpose ofproving the origin of a product, which only direct importers are really in a position to satisfywithout facing serious difficulties.

9. Consequently, the requirement by a Member State of a certificate of authenticity whichis less easily obtainable by importers of an authentic product which has been put into free cir-culation in a regular manner in another Member State than by importers of the same productcoming directly from the country of origin constitutes a measure equivalent to a quantitativerestriction as prohibited by the Treaty.

Two aspects of the ECJ’s reasoning should be noted. First, it is clear from paragraph 5 thatthe crucial element in proving a MEQR is its effect: a discriminatory intent is not required. TheECJ takes a broad view of measures that hinder the free flow of goods within the EC, and thedefinition does not even require that the rules actually discriminate between domestic andimported goods. Dassonville thus sowed the seeds which bore fruit in Cassis de Dijon,8 wherethe ECJ decided that Article 28 could apply to rules which were not discriminatory. Secondly,the ECJ indicates, in paragraph 6, that reasonable restraints may not be caught by Article 28.This is the origin of what became known as the ‘rule of reason’, the meaning of which will beexamined below.

We can now consider the application of Article 28 to cases involving discrimination, bothdirect and indirect.

4. discriminatory barriers to trade

Article 28 can bite if the national rule favours domestic goods over imports, even if the case,on its facts, is confined to products and parties from one Member State.9 Article 28 can alsoapply to a national measure preventing import from one to another part of a Member State.10

discriminatory barriers to trade | 669

8 Case 120/78 Rewe-Zentrale AG, n. 2 above.9 Cases C–321–4/94 Criminal Proceedings against Pistre [1997] ECR I–2343; Case C–448/98 Criminal

Proceedings against Guimont [2000] ECR I–10663.10 Case C–67/97 Criminal Proceedings against Bluhme [1998] ECR I–8033.


There are numerous types of case involving direct or indirect discrimination between domes-tic and imported goods.

(a) import and export restrictionsThe ECJ has always been particularly harsh on discriminatory import or export restrictions.Thus import or export licences are caught by Article 28.11 So, too, are provisions which subjectimported goods to requirements that are not imposed on domestic products. This is exempli-fied by Commission v. Italy,12 in which the ECJ held that procedures and data requirements forthe registration of imported cars, making their registration longer, more complicated, andmore costly than that of domestic vehicles, were prohibited by Article 28.13 The sameapproach is apparent with respect to discriminatory export rules. Thus in Bouhelier14 a Frenchrule which imposed quality checks on watches for export, but not on those intended for thedomestic market, was in breach of what is now Article 29.

(b) promotion or favouring ofdomestic products

Article 28 prohibits action by a State that promotes or favours domestic products to thedetriment of competing imports. This can occur in a number of different ways.

The most obvious is where a State engages in a campaign to promote the purchase of domes-tic as opposed to imported goods.

Case 249/81 Commission v. Ireland[1982] ECR 4005

[Note ToA renumbering: Arts. 30, 92, 93, and 169 are now Arts. 28, 87, 88, and 226 respectively]

The Irish Government sought to promote sales of Irish goods, the object being to achieve aswitch of 3 per cent in consumer spending from imports to domestic products. It adopted anumber of measures including: an information service indicating to consumers which prod-ucts were made in Ireland and where they could be obtained (the Shoplink Service); exhibitionfacilities for Irish goods; the encouragement of the use of the ‘Buy Irish’ symbol for goodsmade in Ireland; and the organization of a publicity campaign by the Irish Goods Council infavour of Irish products, designed to encourage consumers to buy Irish products. The first twoof these activities were subsequently abandoned by the Irish Government, but the latter twostrategies continued to be employed. The Commission brought Article 169 proceedings,alleging that the campaign was an MEQR. Ireland argued that it had never adopted ‘measures’


11 Cases 51–54/71 International Fruit Company v. Produktschap voor Groenten en Fruit (No. 2) [1971]ECR 1107; Case 68/76 Commission v. French Republic [1977] ECR 515; Case C–54/05 Commission v. Finland,25 Mar. 2007.

12 Case 154/85 [1987] ECR 2717.13 See also Case 4/75 Rewe-Zentralfinanz v. Landwirtschaftskammer [1975] ECR 843.14 Case 53/76 Procureur de la République Besançon v. Bouhelier [1977] ECR 197.


for the purpose of Article 30, and that any financial aid given to the Irish Goods Council shouldbe judged in the light of Articles 92 to 93, and not Article 30. The members of the Irish GoodsCouncil were appointed by an Irish Government minister and its activities were funded in pro-portions of about six to one by the Irish Government and private industry respectively. The ECJheld that the Irish government was responsible under the Treaty for the activities of the Councileven though the campaign was run by a private company, and then continued as follows.

THE ECJ

21. The Irish government maintains that the prohibition against measures having an effectequivalent to quantitative restrictions in Article 30 is concerned only with ‘measures’, that is tosay, binding provisions emanating from a public authority. However, no such provision hasbeen adopted by the Irish government, which has confined itself to giving moral support andfinancial aid to the activities pursued by the Irish industries.

22. The Irish government goes on to emphasise that the campaign has had no restrictiveeffect on imports since the proportion of Irish goods to all goods sold on the Irish market fellfrom 49.2% in 1977 to 43.4% in 1980.

23. The first observation to be made is that the campaign cannot be likened to advertisingby private or public undertakings . . . to encourage people to buy goods produced by thoseundertakings. Regardless of the means used to implement it, the campaign is a reflection ofthe Irish government’s considered intention to substitute domestic products for importedproducts on the Irish market and thereby to check the flow of imports from other MemberStates.

. . . 25. Whilst it may be true that the two elements of the programme which have continued in

effect, namely the advertising campaign and the use of the ‘Guaranteed Irish’ symbol, have nothad any significant success in winning over the Irish market to domestic products, it is not pos-sible to overlook the fact that, regardless of their efficacy, those two activities form part of agovernment programme which is designed to achieve the substitution of domestic productsfor imported products and is liable to affect the volume of trade between Member States.

. . . 27. In the circumstances the two activities in question amount to the establishment of a

national practice, introduced by the Irish government and prosecuted with its assistance, thepotential effect of which on imports from other Member States is comparable to that resultingfrom government measures of a binding nature.

28. Such a practice cannot escape the prohibition laid down by Article 30 of the Treaty solelybecause it is not based on decisions which are binding upon undertakings. Even measuresadopted by the government of a Member State which do not have binding effect may be cap-able of influencing the conduct of traders and consumers in that State and thus of frustratingthe aims of the Community as set out in Article 2 and enlarged upon in Article 3 of the Treaty.

29. That is the case where, as in this instance, such a restrictive practice represents theimplementation of a programme defined by the government which affects the national econ-omy as a whole and which is intended to check the flow of trade between Member States byencouraging the purchase of domestic products, by means of an advertising campaign on anational scale and the organization of special procedures applicable solely to domestic prod-ucts, and where those activities are attributable as a whole to the government and are pursuedin an organized fashion throughout the national territory.

30. Ireland has therefore failed to fulfil its obligations under the Treaty by organizing acampaign to promote the sale and purchase of Irish goods within its territory.


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The ECJ’s reasoning provides an excellent example of its general strategy under Article 28.It looks to substance, not form. This is manifested in the way in which it rebuts the Irish argu-ment that only formally binding measures are caught by the Article, (paragraphs 21 and 28);and in its rejection of the argument that, as the campaign appeared to have failed, therefore EClaw should be unconcerned with it (paragraph 25).15

A second type of case caught by Article 28 is where a State has rules on the origin-marking ofcertain goods.

Case 207/83 Commission v. United Kingdom[1985] ECR 1201

[Note ToA renumbering: Arts. 30 and 169 are now Arts. 28 and 226]

The Commission brought an Article 169 action, arguing that UK legislation which required thatcertain goods should not be sold in retail markets unless they were marked with their countryof origin was in breach of Article 30, as an MEQR. The UK argued that the legislation appliedequally to imported and national products, and that this information was of importance to con-sumers since they regarded origin as an indication of the quality of the goods. The extractrelates to the first of these arguments.

THE ECJ

17. [I]t has to be recognized that the purpose of indications of origin or origin-marking is toenable consumers to distinguish between domestic and imported products and that thisenables them to assert any prejudices which they may have against foreign products. As theCourt has had occasion to emphasise in various contexts, the Treaty, by establishing a com-mon market . . . seeks to unite national markets in a single market having the characteristics ofa domestic market. Within such a market, the origin-marking requirement not only makes themarketing in a Member State of goods produced in other Member States in the sectors inquestion more difficult; it also has the effect of slowing down economic interpenetration in theCommunity by handicapping the sale of goods produced as the result of a division of labourbetween Member States.

18. It follows from those considerations that the United Kingdom provisions in question areliable to have the effect of increasing the production costs of imported goods and making itmore difficult to sell them on the United Kingdom market.16

Member State legislation which contains rules on origin-marking will normally be accept-able only if the origin implies a certain quality in the goods, that they were made from certainmaterials or by a particular form of manufacturing, or where the origin is indicative of a spe-cial place in the folklore or tradition of the region in question.17


15 The campaign may have had some impact, since the diminution in sales of Irish goods might have beengreater had the campaign not existed. Not all measures which promote domestic goods will, however, be caughtby the Treaty: Case 222/82 Apple and Pear Development Council v. K.J. Lewis Ltd. [1983] ECR 4083.

16 The ECJ also rejected the UK’s argument that origin-marking was related to consumer protection. TheCourt held that the origin-marking rules were only equally applicable to domestic and imported products as amatter of form: in reality they were intended to enable consumers to give preference to national goods: ibid.,para. 20.

17 Case 12/74 Commission v. Germany [1975] ECR 181; Case 113/80 Commission v. Ireland [1981] ECR 1625.


The Court’s clear intent to stamp firmly on national measures that favour domestic overimported products is equally apparent in a third type of case: public procurement cannot bestructured so as to favour domestic producers.18

Case 45/87 Commission v. Ireland[1988] ECR 4929


Dundalk Council put out to tender a contract for water supply. One of the contract clauses(4.29) was that tenderers had to submit bids based on the use of certain pipes which compliedwith a particular Irish standard (IS 188: 1975). One of the bids was based on the use of a pip-ing which had not been certified by the Irish authorities, but which complied with internationalstandards. The Council refused to consider it for this reason. The Commission brought anArticle 169 action claiming a breach of Article 30.

THE ECJ

19. [I]t must first be pointed out that the inclusion of such a clause (as 4.29) in an invitationto tender may cause economic operators who produce or utilize pipes equivalent to pipes cer-tified with Irish standards to refrain from tendering.

20. It further appears . . . that only one undertaking has been certified by the IIRS19 to IS 188:1975 to apply the Irish Standard Mark to pipes of the type required for the purposes of the pub-lic works contract at issue. That undertaking is located in Ireland. Consequently, the inclusionof Clause 4.29 had the effect of restricting the supply of the pipes needed for the Dundalkscheme to Irish manufacturers alone.

21. The Irish government maintains that it is necessary to specify the standards to whichmaterials must be manufactured, particularly in a case such as this where the pipes utilizedmust suit the existing network. Compliance with another standard, even an internationalstandard such as ISO 160: 1980, would not suffice to eliminate technical difficulties.

22. That technical argument cannot be accepted. The Commission’s complaint does notrelate to compliance with technical requirements but to the refusal of the Irish authorities toverify whether those requirements are satisfied where the manufacturer of the materials hasnot been certified by the IIRS to IS 188. By incorporating in the notice in question the words ‘orequivalent’ after the reference to the Irish standard, as provided for by Directive 71/305 whereit is applicable, the Irish authorities could have verified compliance with the technical condi-tions without from the outset restricting the contract to tenderers proposing to utilize Irishmaterials.

A fourth type of case is where the discrimination in favour of domestic goods is evident inadministrative practice, as exemplified by Commission v. France.20 French law discriminatedagainst imported postal franking machines. The law was changed, but a British companyclaimed that, notwithstanding this, the French authorities repeatedly refused to approve itsmachines. The ECJ held that consistent and general administrative discrimination against


18 Case C–21/88 Du Pont de Nemours Italiana SpA v. Unità Sanitaria Locale No. 2 di Carrara [1990] ECRI–889; Case 72/83 Campus Oil Ltd. v. Minister for Industry and Energy [1984] ECR 2727.

19 Institute for Industrial Research and Standards.20 Case 21/84 Commission v. France [1985] ECR 1356.


imports could be caught by Article 28. The discrimination could, for example, take the formof delay in replying to applications for approval, or refusing approval on the grounds of vari-ous alleged technical faults that were inaccurate.

(c) price fixingA State can treat imported goods less favourably than domestic products through price-fixingregulations which render it more difficult for importers to market their goods.

If the price fixing is discriminatory it is clearly caught by Article 28.21 However, Article 28can catch pricing rules even where they are not, on their face, discriminatory.

Case 82/77 Openbaar Ministerie v. Van Tiggele[1978] ECR 2522

Dutch legislation laid down minimum selling prices for certain spirits. A seller was accused incriminal proceedings of selling them below the stipulated price. The question before the ECJwas whether the minimum selling prices were a MEQR within Article 30 (28).

THE ECJ

12. For the purposes of this prohibition it is sufficient that the measures in question are likelyto hinder, directly or indirectly, actually or potentially, imports between Member States.

13. Whilst national price-control rules applicable without distinction to domestic productsand imported products cannot in general produce such an effect they may do so in certainspecific cases.

14. Thus imports may be impeded in particular when a national authority fixes prices orprofit margins at such a level that imported products are placed at a disadvantage in relation toidentical domestic products either because they cannot profitably be marketed in the condi-tions laid down or because the competitive advantage conferred by lower cost prices iscancelled out.

The ECJ found that the Dutch rule contravened what is now Article 28. It seems that rulesthat fix prices by reference to a maximum percentage profit will, by way of contrast, be foundto be more readily compatible with this Article. Such rules may take account of differences inproduction cost between domestic goods and imports.23

(d) measures which make imports more difficult or costly

There are numerous ways in which a Member State can render it more difficult for importersto break into that market, as exemplified by the Schloh case.


21 Case 181/82 Roussel Labaratoria BV v. The State of The Netherlands [1983] ECR 3849; Case 56/87Commission v. Italy [1988] ECR 2919.

22 See also Case 65/75 Riccardo Tasca [1976] ECR 291.23 Case 78/82 Commission v. Italy [1983] ECR 1955.


Case 50/85 Schloh v. Auto Contrôle Technique[1986] ECR 1855


Schloh bought a car in Germany and obtained from a Ford dealer in Belgium a certificate of con-formity with vehicle types in Belgium. Under Belgian law he was required to submit his car totwo roadworthiness tests, for which fees were charged. He challenged the tests, arguing thatthey were an MEQR. The extract concerns the first roadworthiness test.

THE ECJ

12. . . . Roadworthiness testing is a formality which makes the registration of importedvehicles more difficult and more onerous and consequently is in the nature of a measurehaving an effect equivalent to a quantitative restriction.

13. Nevertheless, Article 36 may justify such a formality on grounds of the protection ofhuman life and health, provided that it is established, first, that the test at issue is necessaryfor the attainment of that objective and, secondly, that it does not constitute a means of arbi-trary discrimination or a disguised restriction on trade between Member States.

14. As far as the first condition is concerned, it must be acknowledged that roadworthinesstesting required prior to the registration of an imported vehicle may . . . be regarded as neces-sary for the protection of human health and life where the vehicle in question has already beenput on the road. In such cases roadworthiness testing performs a useful function inasmuch asit makes it possible to check that the vehicle has not been damaged and is in a good state ofrepair. However such testing cannot be justified on those grounds where it relates to animported vehicle carrying a certificate of conformity which has not been placed on the roadbefore being registered in the importing Member State.

15. As far as the second condition is concerned, it must be stated that the roadworthinesstesting of imported vehicles cannot, however, be justified under the second sentence ofArticle 36 of the Treaty if it is established that such testing is not required in the case of vehiclesof national origin presented for registration in the same circumstances. If that were the case itwould become apparent that the measure in question was not in fact inspired by a concern forthe protection of human health and life but in reality constituted a means of arbitrary discrim-ination in trade between Member States. It is for the national court to verify that such non-discriminatory treatment is in fact ensured.

The ECJ held that the Belgian rule was contrary to Article 28, save in relation to cars whichwere already on the road, provided that in this type of case the rules were applied in a non-discriminatory fashion.

(e) national measures versus private actionIt seems clear that Article 28 applies to measures taken by the State,24 as opposed to thosetaken by private parties.25 Other Treaty provisions, notably Articles 81 and 82, will apply


24 S. Van den Bogaert, ‘Horizontality: The Court Attacks?’, in C. Barnard and J. Scott (eds.), The Law of theSingle European Market, Unpacking the Premises (Hart, 2002), ch. 5.

25 Case 311/85 Vereniging van Vlaamse Reisebureau’s v. Sociale Dienst de Plaatselijke en GewestelijkeOverheidsdiensten [1987] ECR 3821, para. 30; Case C–159/00 Sapod-Audic v. Eco-Emballages SA [2002] ECRI–5031, para. 74.


to actions by private parties that restrict competition and have an impact on inter-statetrade.26

This means that the issue of what is a state entity has to be addressed. Thus in the ‘BuyIrish’27 case we have already seen that the ECJ rejected the argument that the Irish GoodsCouncil was a private body and therefore immune from the application of Article 28. TheIrish Government’s involvement with the funding of the organization and the appointment ofits members was sufficient to render it public for these purposes, while in the Apple and PearDevelopment Council case28 the existence of a statutory obligation on fruit growers to pay cer-tain levies to the Council sufficed to render the body public for these purposes. It is clear thatinstitutions such as those concerned with trade regulation may come within the definition ofthe State for these purposes, even if they are nominally private, provided that they receive ameasure of state support or ‘underpinning’.29

This Article can also apply against the State even though private parties have taken themain role in restricting the free movement of goods, as exemplified by Commission v.France.30 The Commission brought an Article 226 action against the French governmentfor breach of what is now Article 28 combined with Article 10, because the governmenthad taken insufficient measures to prevent French farmers from disrupting imports ofagricultural produce from other EC countries. The ECJ held that it was incumbent on agovernment to take all necessary and appropriate measures to ensure that free move-ment was respected in its territory, even where the obstacles were created by privateparties.31

(f) summaryi. If a polity decides to embrace a single market, then discriminatory or protectionist meas-

ures will be at the top of the list of those to be caught, since they are directly opposed tothe single market ideal.

ii. The court entrusted with policing such a regime must be mindful of the many differentways in which a State can seek to discriminate against imported goods.

iii. The ECJ has been aware of this, and has made sure that indirect as well as direct discrim-ination is caught by Article 28.


26 See Chs. 25–26.27 Case 249/81 Commission v. Ireland [1982] ECR 4005. See also Case 325/00 Commission v. Germany [2002]

ECR I–9977.28 Case 222/82 Apple and Pear Development Council, n. 15 above.29 Cases 266 and 267/87 R. v. The Pharmaceutical Society, ex p. API [1989] ECR 1295.30 Case C–265/95 [1997] ECR I–6959; Case C–112/00 Schmidberger, Internationale Transporte und Planzuge

v. Austria [2003] ECR I–5659, paras. 57–59.31 See also Reg. 2679/98 of 7 Dec. 1998 on the functioning of the internal market in relation to the free move-

ment of goods among the Member States [1998] OJ L337/8, but for the weakness of this Reg. see Report fromthe Commission to the Council and European Parliament on the application of Regulation 2679/98,COM(2001)160 final.


5. indistinctly applicable rules: cassis de dijon

(a) foundations: cassis de dijonThe removal of discriminatory trade barriers is undoubtedly a necessary condition for theattainment of single-market integration. It is not, however, sufficient. There are many rulesthat do not discriminate between goods dependent upon the country of origin, but whichnevertheless create real barriers to the passage of products between Member States.

The Commission appreciated this when framing Directive 70/50.32 Article 2 was concernedwith discriminatory measures. Article 3 provided that the Directive also covered measuresgoverning the marketing of products which deal, inter alia, with shape, size, weight, compos-ition, presentation, and identification, where the measures were equally applicable to domes-tic and imported products, and where the restrictive effect of such measures on the freemovement of goods exceeded the effects intrinsic to such rules.

The possibility that Article 28 could be applied to indistinctly applicable rules was alsoapparent in Dassonville.33 The definition of an MEQR in paragraph 5 did not require a meas-ure to be discriminatory. The seeds that were sown in Directive 70/50 and Dassonville came tofruition in the seminal Cassis de Dijon case.

Case 120/78 Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein[1979] ECR 649


The applicant intended to import the liqueur ‘Cassis de Dijon’ into Germany from France. TheGerman authorities refused to allow the importation because the French drink was not of suf-ficient alcoholic strength to be marketed in Germany. Under German law such liqueurs had tohave an alcohol content of 25 per cent, whereas the French drink had an alcohol content ofbetween 15 and 20 per cent. The applicant argued that the German rule was an MEQR, sinceit prevented the French version of the drink from being lawfully marketed in Germany.

THE ECJ

8. In the absence of common rules relating to the production and marketing of alcohol . . . itis for the Member States to regulate all matters relating to the production and marketing ofalcohol and alcoholic beverages on their own territory.

Obstacles to movement within the Community resulting from disparities between thenational laws relating to the marketing of the products in question must be accepted in so faras those provisions may be recognized as being necessary in order to satisfy mandatoryrequirements relating in particular to the effectiveness of fiscal supervision, the protection ofpublic health, the fairness of commercial transactions and the defence of the consumer.

9. The Government of the Federal Republic of Germany . . . put forward various argumentswhich, in its view, justify the application of provisions relating to the minimum alcohol content of

indistinctly applicable: cassis de dijon | 677

32 Dir. 70/50 [1970] OJ L13/29, Art. 2(3).33 Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837.


alcoholic beverages, adducing considerations relating on the one hand to the protection of pub-lic health and on the other to the protection of the consumer against unfair commercial practices.

10. As regards the protection of public health the German Government states that the pur-pose of the fixing of minimum alcohol contents by national legislation is to avoid the prolifer-ation of alcoholic beverages on the national market, in particular alcoholic beverages with a lowalcohol content, since, in its view, such products may more easily induce a tolerance towardsalcohol than more highly alcoholic beverages.

11. Such considerations are not decisive since the consumer can obtain on the market anextremely wide range of weakly or moderately alcoholic products and furthermore a large pro-portion of alcoholic beverages with a high alcohol content freely sold on the German market isgenerally consumed in a diluted form.

12. The German Government also claims that the fixing of a lower limit for the alcohol con-tent of certain liqueurs is designed to protect the consumer against unfair practices on the partof producers and distributors of alcoholic beverages.

This argument is based on the consideration that the lowering of the alcohol contentsecures a competitive advantage in relation to beverages with a higher alcohol content, sincealcohol constitutes by far the most expensive constituent of beverages by reason of the highrate of tax to which it is subject.

Furthermore, according to the German Government, to allow alcoholic products into free cir-culation wherever, as regards their alcohol content, they comply with the rules laid down in thecountry of production would have the effect of imposing as a common standard within theCommunity the lowest alcohol content permitted in any of the Member States, and even ofrendering any requirements in this field inoperative since a lower limit of this nature is foreignto the rules of several Member States.

13. As the Commission rightly observed, the fixing of limits to the alcohol content of bever-ages may lead to the standardization of products placed on the market and of their designa-tions, in the interests of a greater transparency of commercial transactions and offers for saleto the public.

However, this line of argument cannot be taken so far as to regard the mandatory fixing ofminimum alcohol contents as being an essential guarantee of the fairness of commercialtransactions, since it is a simple matter to ensure that suitable information is conveyed to thepurchaser by requiring the display of an indication of origin and of the alcohol content on thepackaging of products.

14. It is clear from the foregoing that the requirements relating to the minimum alcohol con-tent of alcoholic beverages do not serve a purpose which is in the general interest and such asto take precedence over the requirements of the free movement of goods, which constitutesone of the fundamental rules of the Community.

In practice, the principal effect of requirements of this nature is to promote alcoholic bever-ages having a high alcohol content by excluding from the national market products of otherMember States which do not answer that description.

It therefore appears that the unilateral requirement imposed by the rules of a Member Stateof a minimum alcohol content for the purposes of the sale of alcoholic beverages constitutesan obstacle to trade which is incompatible with the provisions of Article 30 of the Treaty.

There is therefore no valid reason why, provided that they have been lawfully producedand marketed in one of the Member States, alcoholic beverages should not be introduced intoany other Member State; the sale of such products may not be subject to a legal prohibition onthe marketing of beverages with an alcohol content lower than the limits set by the national rules.

The significance of Cassis de Dijon can hardly be overstated, and it is therefore worth dwellingupon the result and the reasoning.



In terms of result the Court’s ruling in Cassis affirmed and developed the Dassonville judg-ment. It affirmed paragraph 5 of Dassonville: what is now Article 28 could apply to nationalrules that did not discriminate against imported products, but which inhibited trade becausethey were different from the trade rules applicable in the country of origin. The fundamentalassumption was that, once goods had been lawfully marketed in one Member State, theyshould be admitted into any other State without restriction, unless the State of import couldsuccessfully invoke one of the mandatory requirements. The Cassis judgment encapsulatedtherefore a principle of mutual recognition: paragraph 14(4). The Cassis ruling also built uponparagraph 6 of Dassonville, in which the ECJ introduced the rule of reason: in the absence ofCommunity harmonization, reasonable measures could be taken by a State to prevent unfairtrade practices. Paragraph 8 of Cassis developed this idea. Four matters (fiscal supervision,etc.) were listed that could prevent a trade rule which inhibited the free movement of goodsfrom being caught by what is now Article 28. This list is not, as will be seen below, exhaustive.The mandatory requirements that constitute the rule of reason are taken into account withinthe fabric of Article 28, and are separate from what is now Article 30.

The reasoning in Cassis is as significant as the result. The core of the reasoning is to be foundin paragraph 8 of the judgment. This is a paragraph to be savoured, and we can learn a lotabout the Court’s style of adjudication by focusing upon it. The ECJ began by affirming theright of the States to regulate all matters that had not yet been the subject of Communityharmonization. Yet within half a dozen lines the whole balance shifted. State regulation ofsuch areas must be accepted, together with any obstacles to trade which might follow fromdisparities in national laws, but only in so far as these trade rules could be justified by one ofthe mandatory requirements listed in paragraph 8. What began as an assertion of States’ rightswas transformed into a legal conclusion that required the State to justify the indistinctlyapplicable rules under the rule of reason.

The ECJ scrutinized closely assertions that the mandatory requirements applied. Now to besure the German government’s claim in paragraph 10 was risible, and the Court was morepolite in its response than the argument warranted. The substance of the main claim in para-graph 12 was little better, and was countered in paragraph 13. The one point of real substanceraised by the German government was to be found in paragraph 12(3), and it elicited no directresponse from the Court. The effect of Cassis was deregulatory: it rendered inapplicable traderules that prevented goods lawfully marketed in one State from being imported into anotherState. The result might be a common standard based on the country with the least demandingrules, what is often referred to as the ‘regulatory race to the bottom’.34 The implications of thiswill be considered below.35

(b) application: the post-cassis jurisprudenceThere were numerous cases applying Cassis to various trade rules.36 In Déserbais37 an importerof Edam cheese from Germany into France was prosecuted for unlawful use of a trade name.


34 This will not always be so: see 00.35 See below, 00.36 Case 298/87 Smanor [1988] ECR 4489; Case 407/85 Drei Glocken v. USL Centro-Sud [1988] ECR 4233;

Case C–362/88 GB-INNO-BM v. Confédération du Commerce Luxembourgeois Asbl [1990] ECR I–667; CaseC–30/99 Commission v. Ireland [2001] ECR I–4619; Case C–123/00 Criminal Proceedings against Bellamy andEnglish Shop Wholesale SA [2001] ECR I–2795; Case C–14/02 ATRAL SA v. Belgium [2003] ECR I–4431.

37 Case 286/86 Ministère Public v. Déserbais [1988] ECR 4907.


In Germany such cheese could be lawfully produced with a fat content of only 34.3 per cent,whereas in France the name Edam was restricted to cheese with a fat content of 40 per cent.The importer relied on Article 28 by way of defence to the criminal prosecution. The ECJ held,in accord with Cassis, that the French rule was incompatible with this Article, and could notbe saved by the mandatory requirements.38

The same result was reached in Gilli and Andres,39 where importers of apple vinegar fromGermany into Italy were prosecuted for fraud because they had sold vinegar in Italy which wasnot made from the fermentation of wine. The rule hampered Community trade and did notbenefit from the mandatory requirements, since proper labelling could alert consumers to thenature of the product, thereby avoiding consumer confusion.

The same approach was apparent in Rau,40 which was concerned with national rules onpackaging rather than content. Belgian law required all margarine to be marketed in cube-shaped packages, irrespective of where it had been made, but it was clearly more difficult fornon-Belgian manufacturers to comply without incurring cost increases. The ECJ held Article28 was applicable, and that the Belgian rule could not be justified on the basis of consumerprotection, since any consumer confusion could be avoided by clear labelling.

(c) indistinctly applicable rules: article 29Article 29 prohibits quantitative restrictions and MEQRs in relation to exports in the samemanner as does Article 28 in relation to imports. The ECJ has, however, held that there is a dif-ference in the scope of the two provisions. Whereas Article 28 will apply to discriminatoryprovisions and also to indistinctly applicable measures, Article 29 will, it seems, apply only ifthere is discrimination.41 An exporter faced with a national rule on, for example, qualitystandards for a product to be marketed in that State cannot use Article 29 to argue that such arule renders it more difficult for that exporter to penetrate other Community markets.

This was established in Groenveld.42 Dutch legislation prohibited all manufacturers of meatproducts from having in stock or processing horsemeat. The purpose was to safeguard theexport of meat products to countries which prohibited the marketing of horseflesh. It wasimpossible to detect the presence of horsemeat within other meat products, and therefore theban was designed to prevent its use by preventing meat processors from having such horse-meat in stock at all. The sale of horsemeat was not actually forbidden in the Netherlands.Nonetheless the Court held that the Dutch rule did not infringe what is now Article 29. TheArticle was aimed at national measures which had as their specific object or effect the restric-tion of exports, so as to provide a particular advantage for national production at the expenseof the trade of other Member States. This was not the case here, said the Court, since the


38 The ECJ acknowledged that there might be cases where a product presented under a particular name wasso different in terms of its content from products generally known by that name that it could not be regarded asfalling within the same category. This was not so on the facts of the instant case.

39 Case 788/79 Italian State v. Gilli and Andres [1980] ECR 2071. See also Case C–17/93 Openbaar Ministeriev. Van der Veldt [1994] ECR I–3537.

40 Case 261/81 Walter Rau Lebensmittelwerke v. de Smedt Pvba [1982] ECR 3961. See also Case C–317/92Commission v. Germany [1994] ECR I–2039; Case C–369/89 Groupement des Producteurs, Importeurs et AgentsGénéraux d’Eaux Minérales Etrangères (Piagème) Asbl v. Peeters Pvba [1991] ECR I–2971.

41 Case C–12/02 Criminal Proceedings against Marco Grilli [2003] ECR I–11585, paras. 41–42.42 Case 15/79 P.B. Groenveld BV v. Produktschap voor Vee en Vlees [1979] ECR 3409. See also Case 237/82

Jongeneel Kaas v. The State (Netherlands) and Stichting Centraal Organ Zuivelcontrole [1984] ECR 483; Case98/86 Ministère Public v. Mathot [1987] ECR 809; Case C–293/02 Jersey Produce Marketing Organisation v. Statesof Jersey [2005] ECR I–9543.


prohibition applied to the production of goods of a certain kind without drawing a distinc-tion depending on whether such goods were intended for the national market or for export.43

The rationale for making Article 28 applicable to measures which do not discriminate isthat they impose a dual burden on the importer who will have to satisfy the relevant rules inhis or her own State and also the State of import. This will not normally be so in relation toArticle 29. Thus, in a case such as Groenveld the rule applied to all goods, those for both thedomestic and the export market, and the goods were subject to no further rule at that stage ofproduction or sale.44 One could, however, imagine instances where a dual burden might exist.There are, moreover, indications from the ECJ’s jurisprudence under what is now Article 49that rules which apply to exporters will be caught even if they are not discriminatory.45 Weshall discuss this issue further below.46

(d) indistinctly applicable rules:the limits of article 28

Cassis signalled the ECJ’s willingness to extend Article 28 to catch indistinctly applicable rules.The difficulty is that all rules that concern trade, directly or indirectly, could be said to affectthe free movement of goods in various ways. Thus, as Weatherill and Beaumont note, it couldbe said that rules requiring the owner of a firearm to have a licence, or spending limitsimposed on government departments, reduce the sales opportunities for imported prod-ucts.47 It would, as they say, seem absurd to bring such rules within Article 28, yet they couldbe caught by the Dassonville formula.48

A distinction can however be drawn, as Weatherill and Beaumont note,49 between whatmay be termed dual-burden rules and equal-burden rules. Cassis is concerned with dual-burden rules. State A imposes rules on the content of goods. These are applied to goodsimported from State B, even though such goods will already have complied with the traderules in State B. Cassis prevents State A from imposing its rules in such instances, unless theycan be saved by the mandatory requirements. Equal-burden rules are those applying to allgoods, irrespective of origin, which regulate trade in some manner. They are not designed tobe protectionist. These rules may have an impact on the overall volume of trade, but this willbe no greater impact for imports than for domestic products.

A key issue is whether rules of this latter nature should be held to fall within Article 28,subject to a possible justification, or whether they should be deemed to be outside Article 28altogether. The result might be the same, in that the rule might be held lawful. The choice isnonetheless important. If these rules are within Article 28 they are prima facie unlawful, andthe burden is on those seeking to uphold the rule to show objective justification. Both strat-egies were evident in the ECJ’s jurisprudence prior to Keck. 50


43 N. 42 above, para. 7.44 R. Barents, ‘New Developments in Measures Having Equivalent Effect’ (1981) 18 CMLRev. 271.45 Case C–384/93 Alpine Investments BV v. Minister van Financiën [1995] ECR I–1141. Jacobs AG doubted

whether Groenveld, n. 42 above, would apply to rules of the exporting State which concerned the marketing ofgoods: [1995] ECR I–1141, para. 55.

46 See Ch. 22.47 S. Weatherill and P. Beaumont, EU Law (3rd edn., Penguin, 1999), 608.48 Case 8/74 [1974] ECR 837, para. 5.49 N. 47 above, 608–609.50 Cases C–267 and 268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I–6097.


In some cases it held that rules which did not relate to the characteristics of the goods anddid not impose a dual burden on the importer, but concerned only the conditions on whichall goods were sold, were outside Article 28. Thus in Oebel 51 the Court held that a rule whichprohibited the delivery of bakery products to consumers and retailers, but not wholesalers, atnight was not caught, since it applied in the same way to all producers wherever they wereestablished.52

In other cases the Court held, however, that Article 28 could apply to rules which were notdissimilar to those in the preceding paragraph. Thus in Cinéthèque53 the ECJ held that aFrench law banning the sale or hire of videos of films during the first year in which the filmwas released, the objective being to encourage people to go to the cinema and hence protectthe profitability of cinematographic production, was caught by Article 28, even though it didnot favour domestic production and did not seek to regulate trade. The ECJ held that theFrench law could however be justified, since it sought to encourage the creation of films irre-spective of their origin.54 The same approach to Article 28 is apparent in Sunday Trading cases.

Case 145/88 Torfaen BC v. B & Q plc[1989] ECR 3851

B & Q was prosecuted for violation of the Sunday trading laws which prohibited retail shopsfrom selling on Sundays, subject to exceptions for certain types of products. B & Q claimedthat these laws constituted an MEQR within Article 30. The effect of the laws was to reducetotal turnover by about 10 per cent, with a corresponding diminution of imports from otherMember States. But imported goods were, in this respect, in no worse a position than domes-tic goods: the reduction in total turnover affected all goods equally.

THE ECJ

11. The first point which must be made is that national rules prohibiting retailers from open-ing their premises on Sunday apply to imported and domestic products alike. In principle, themarketing of products imported from other Member States is not therefore made more diffi-cult than the marketing of domestic products.

12. Next, it must be recalled that in its judgment . . . in Joined Cases 60 and 61/84 (Cinéthèque)the Court held, with regard to a prohibition of the hiring of video-cassettes applicable todomestic and imported products alike, that such a prohibition was not compatible with theprinciple of the free movement of goods provided for in the Treaty unless any obstacle toCommunity trade thereby created did not exceed what was necessary in order to ensure theattainment of the objective in view and unless that objective was justified with regard toCommunity law.

13. In those circumstances it is therefore necessary in a case such as this to consider firstof all whether rules such as those at issue pursue an aim which is justified with regard to


51 Case 155/80 [1981] ECR 1993, para. 20.52 See also Case 148/85 Direction Générale des Impôts and Procureur de la République v. Forest [1986] ECR

3449, para. 11; Case 75/81 Belgian State v. Blesgen [1982] ECR 1211; Case C–23/89 Quietlynn Ltd. v. Southend-on-Sea BC [1990] ECR I–3059.

53 Cases 60 and 61/84 Cinéthèque SA v. Fédération Nationale des Cinémas Français [1985] ECR 2605.54 The ECJ’s approach can be contrasted with that taken by Slynn AG, who argued that the French law

should fall outside Art. 28, since it did not impose any additional requirement on importers: ibid., 2611.


Community law. As far as this question is concerned the Court has already stated in its judg-ment . . . in Case 155/80 (Oebel [1981] ECR 1993) that national rules governing the hours ofwork, delivery and sale in the bread and confectionery industry constitute a legitimate part ofeconomic and social policy, consistent with the objectives of public interest pursued by theTreaty.

14. The same consideration must apply as regards national rules governing the openinghours of retail premises. Such rules reflect certain political and economic choices in so far astheir purpose is to ensure that working and non-working hours are so arranged as to accordwith national or regional socio-cultural characteristics, and that, in the present state ofCommunity law, is a matter for Member States. Furthermore such rules are not designed togovern the patterns of trade between Member States.

15. Secondly, it is necessary to ascertain whether the effects of such national rules exceedwhat is necessary to achieve the aim in view. As is indicated in Article 3 of CommissionDirective 70/50 . . . the prohibition laid down in Article 30 covers national measures governingthe marketing of products where the restrictive effect of such measures on the free move-ment of goods exceeds the effects intrinsic to trade rules.

16. The question whether the effects of specific national rules do in fact remain within thatlimit is a question to be determined by the national court.

17. The reply to the first question must therefore be that Article 30 of the Treaty must beinterpreted as meaning that the prohibition which it lays down does not apply to national rulesprohibiting retailers from opening their premises on Sunday where the restrictive effects onCommunity trade which may result therefrom do not exceed the effects intrinsic to rules ofthat kind.

The approach in Torfaen was conceptually identical to that in Cinéthèque. The rule wasprima facie caught by what is now Article 28, but it could escape prohibition provided thatthere was some objective justification, and that the effects of the rule were proportionate, thelatter issue to be determined by national courts. Subsequent case law within the UnitedKingdom attested to the difficulty in applying the ECJ’s test.55 The ECJ sought to resolve thesedifficulties by making it clear that Sunday trading rules were proportionate.56 The fundamen-tal approach nonetheless remained the same: such rules were prima facie within Article 28.The post-Torfaen case law simply made things easier for national courts by providing guid-ance on proportionality.

The ECJ’s case law provided academics with much material concerning the proper bound-aries of Article 28. Some saw little wrong with the ECJ’s approach in Cinéthèque and Torfaen.Others were less happy with the Court’s approach.57 White distinguished between the charac-teristics of the goods and selling arrangements, a theme picked up by the ECJ in Keck.


55 Stoke City Council v. B & Q plc [1990] 3 CMLR 31; Wellingborough BC v. Payless [1990] 1 CMLR 773; B &Q plc v. Shrewsbury BC [1990] 3 CMLR 535; Payless v. Peterborough CC [1990] 2 CMLR 577; A. Arnull, ‘WhatShall We Do On Sunday?’ (1991) 16 ELRev. 112.

56 Case C–312/89 Union Département des Syndicats CGT de l’Aisne v. SIDEF Conforama [1991] ECR I–997;Case C–332/89 Ministère Public v. Marchandise [1991] ECR I–1027; Cases C–306/88, 304/90, and 169/91 Stoke-on-Trent CC v. B & Q plc [1992] ECR I–6457, 6493, 6635; Cases C–418–421, 460–462, and 464/93, 9–11, 14–15,23–24, and 332/94 Semeraro Casa Uno Srl v. Sindaco del Commune di Erbusco [1996] ECR I–2975.

57 J. Steiner, ‘Drawing the Line: Uses and Abuses of Art. 30 EEC’ (1992) 29 CMLRev. 749.


E. White, In Search of the Limits to Article 30 of the EEC Treaty58

[A]s the judgment of the Court in Cassis de Dijon clearly shows, Member States are notentitled to require that imported products have the same characteristics as are required of, orare traditional in, domestic products unless this is strictly necessary for the protection of somelegitimate interest. There is not, however, the same need to require the rules relating to the cir-cumstances in which certain goods may be sold or used in the importing Member State to beoverridden for this purpose as long as imported products enjoy equal access to the market ofthe importing Member State compared with national goods. In such a case the importedproduct is not deprived of any advantage it derives from the different legal and economicenvironment prevailing in the place of production. In fact, any reduction of total sales (andtherefore imports) which may result from restrictions on the circumstances in which they maybe sold does not arise from disparities between national rules but rather out of the existenceof the rules in the importing Member State.

6. indistinctly and distinctly applicable rules: keck and

selling arrangements

(a) keck: selling arrangements

Cases C–267 and 268/91 Criminal Proceedings against Keck and Mithouard[1993] ECR I–6097


Keck and Mithouard (K & M) were prosecuted in the French courts for selling goods at a pricewhich was lower than their actual purchase price (resale at a loss), contrary to a French law of1963 as amended in 1986. The law did not ban sales at a loss by the manufacturer. K & Mclaimed that the French law was contrary to Community law concerning, inter alia, free move-ment of goods.

THE ECJ

12. It is not the purpose of national legislation imposing a general prohibition on resale at aloss to regulate trade in goods between Member States.

13. Such legislation may, admittedly, restrict the volume of sales, and hence the volume ofsales of products from other Member States, in so far as it deprives traders of a method ofsales promotion. But the question remains whether such a possibility is sufficient to charac-terize the legislation in question as a measure having equivalent effect to a quantitative restric-tion on imports.


58 (1989) 26 CMLRev. 235, 246–247, italics in the original. See also K. Mortelmans, ‘Article 30 of the EECTreaty and Legislation Relating to Market Circumstances: Time to Consider a New Definition’ (1991) 28CMLRev. 115, 130.


14. In view of the increasing tendency of traders to invoke Article 30 of the Treaty as ameans of challenging any rules whose effect is to limit their commercial freedom even wheresuch rules are not aimed at products from other Member States, the Court considers it neces-sary to re-examine and clarify its case law on this matter.

15. 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 movementof goods where they are the consequence of applying rules that lay down requirements to bemet by such goods (such as requirements as to designation, form, size, weight, composition,presentation, labelling, packaging) to goods from other Member States where they are law-fully manufactured and marketed, even if those rules apply without distinction to all productsunless their application can be justified by a public-interest objective taking precedence overthe free movement of goods.

16. However, contrary to what has previously been decided, the application to productsfrom other Member States of national provisions restricting or prohibiting certain sellingarrangements is not such as to hinder directly or indirectly, actually or potentially, tradebetween Member States within the meaning of the Dassonville judgment . . . provided thatthose provisions apply to all affected traders operating within the national territory and pro-vided that they affect in the same manner, in law and fact, the marketing of domestic productsand of those from other Member States.

17. Where those conditions are fulfilled, the application of such rules to the sale of productsfrom another Member State is not by nature such as to prevent their access to the market orto impede access any more than it impedes the access of domestic products. Such rulestherefore fall outside the scope of Article 30 of the Treaty.

18. Accordingly, the reply to be given to the national court is that Article 30 of the EEC Treatyis to be interpreted as not applying to legislation of a Member State imposing a general prohib-ition on resale at a loss.

It is clear that the rationale for the decision was based in part upon the distinction betweendual-burden rules and equal-burden rules: paragraphs 15 to 17.

Cassis-type rules relating to the goods themselves were within Article 28, in part because theserules would have to be satisfied by the importer in addition to any such provisions existingwithin his or her own State (paragraph 15). Such rules were by their very nature59 likely toimpede access to the market for imported goods.

Rules concerning selling arrangements, by way of contrast, imposed an equal burden on all thoseseeking to market goods in a particular territory (paragraph 17). They did not impose extra costson the importer,60 their purpose was not to regulate trade (paragraph 12), and they did not pre-vent access to the market. They were therefore not within Article 28, provided that they affected inthe same manner in law or fact domestic and imported goods: the second part of paragraph 16.

The reference to the earlier case law that was being reassessed (paragraph 16) was unclear,because the Court did not name specific cases. It appeared to encompass decisions such asTorfaen and probably Cinéthèque,61 since the challenged rules concerned selling arrangementswhich affected importers no more than domestic producers and the effect on intra-Community trade was a reduction in the volume of sales.

indistinctly and distinctly applicable rules | 685

59 Cases C–401 and 402/92 Criminal Proceedings against Tankstation ’t Heustke vof and J.B.E. Boermans[1994] ECR I–2199, 2220.

60 Ibid.61 In Cases C–401 and 402/92 Tankstation, n. 59 above,Van Gerven AG felt that Cinéthèque would be decided

differently now in the light of Keck.


The ECJ’s desire to exclude selling arrangements from the ambit of Article 28 is apparentfrom later case law. In Tankstation62 the Court held that national rules which provided for thecompulsory closing of petrol stations were not caught by Article 28. The ECJ repeated its rul-ing in Keck, and concluded that the rules related to selling arrangements that applied equallyto all traders without distinguishing the origin of the goods. In Punto Casa63 and Semeraro64

the Court reached the same conclusion in relation to Italian legislation on the closure of retailoutlets on Sundays. The rule applied equally to domestic and imported products, and there-fore was outside the scope of Article 28. The same theme is apparent in Hunermund,65 wherethe ECJ held that a rule prohibiting pharmacists from advertising para-pharmaceutical prod-ucts that they were allowed to sell was not caught by Article 28. The Court observed that therule was not directed towards intra-Community trade, that it did not preclude traders otherthan pharmacists from advertising such goods, and that it applied evenly as between alltraders. Although the rule might have some impact on the overall volume of sales, this was notenough to render it an MEQR for the purpose of Article 28. The ECJ also held that nationalprovisions restricting the number of outlets for a given product, or imposing a licensingrequirement, were outside Article 28. This was either because the rule related to sellingarrangements, or because the impact was too indirect and uncertain.66

(b) keck: static and dynamic selling arrangements

While one can appreciate the ECJ’s desire to limit Article 28, the distinction drawn in Keckbetween rules that go to the nature of the product itself and those which relate to the sellingarrangements for that product is problematic. The problem resides in ambiguity about themeaning of the term ‘selling arrangements’.

This could connote only what may be termed static selling arrangements: rules relating tothe hours at which shops may be open, the length of time for which people may work, or thetype of premises in which certain goods may be sold. Non-static or dynamic selling arrange-ments include the ways in which a manufacturer chooses to market this specific product,through a certain form of advertising, free offers, and the like.

The objection to taking the latter out of Article 28 is that they may relate more closely to thedefinition of the product itself. Legislation that restricted certain forms of advertising or sales-promotion might limit intra-Community trade, even if the rules were indistinctly applicable.It might force a producer to adopt sales-promotion or advertising schemes which differed asbetween States, or to discontinue a scheme which was thought to be particularly effective.67

Non-static selling arrangements can therefore form an integral aspect of the goods, in muchthe same way as do rules relating to composition, labelling, or presentation.

Yet it is clear from Keck that the Court regarded some such rules as selling arrangements andhence outside Article 28. Thus in paragraph 13 of its judgment it admitted that a rule


62 Ibid.63 Cases C–69 and 258/93 Punto Casa SpA v. Sindaco del Commune di Capena [1994] ECR I–2355.64 N. 56 above.65 Case C–292/92 R. Hunermund v. Landesapothekerkammer Baden-Württemberg [1993] ECR I–6787.66 Case C–387/93 Banchero [1995] ECR I–4663; Case C–379/92 Peralta [1994] ECR I–3453; Cases

C–140–142/94 Dip SpA v. Commune di Bassano del Grappa [1995] ECR I–3257.67 Case 286/81 Oosthoek’s Uitgeversmaatschappij BV [1982] ECR 4575. See also Case 382/87 Buet v. Minstère

Public [1989] ECR 1235; Cases C–34–36/95 Konsumentombudsmannen (KO) v. De Agostini (Svenska) Forlag ABand TV-Shop i Sverige AB [1997] ECR I–3843.


prohibiting sales at a loss deprived traders of a method of sales-promotion, and hence reducedthe volume of sales, and yet treated this rule as a selling arrangement which was outside Article28. While in Hunermund 68 and Leclerc-Siplec69 a limited ban on advertising was characterizedas a method of sales-promotion and held to be outside Article 28, and in Schmidt70 a prohib-ition on doorstep sales of silver jewellery was held prima facie to fall outside Article 28.

(c) keck and selling arrangments:two judicial qualifications

It is clear that if the challenged national rule requires the alteration of packaging or labellingof the imported products this generally precludes it from being a selling arrangement withinKeck.71 The exclusion of selling arrangements from the ambit of Article 28 is moreover subjectto two important qualifications.

First, it is open to the ECJ to characterize rules which affect selling as part of the product itself,and hence within the ambit of Article 28. This is exemplified by Familiapress.72

Case C–368/95 Vereinigte Familiapress Zeitungsverlags- und Vertreibs GmbH v. Heinrich Bauer Verlag

[1997] ECR I–3689


Familiapress, an Austrian newspaper publisher, sought to restrain HBV, a German publisher,from publishing in Austria a magazine containing crossword puzzles for which the winningreaders would receive prizes. Austrian legislation prohibited publishers from including suchprize competitions in their papers. Austria argued that its legislation was not caught by Article30, since the national law related to a method of sales promotion, and was therefore, accord-ing to Keck, outside Article 30.

THE ECJ

11. The Court finds that, even though the relevant national legislation is directed against amethod of sales promotion, in this case it bears on the actual content of the products, in so faras the competitions in question form an integral part of the magazine in which they appear. Asa result, the national legislation in question as applied to the facts of the case is not concernedwith a selling arrangement within the meaning of the judgment in Keck and Mithouard.

12. Moreover, since it requires traders established in other Member States to alter the con-tents of the periodical, the prohibition at issue impairs access of the products concerned to themarket of the Member State of importation and consequently hinders free movement of


68 Case C–292/92 Hunermund, n. 65 above.69 Case C–412/93 Société d’Importation Edouard Leclerc-Siplec v. TFI Publicité SA [1995] ECR I–179.70 Case C–441/04 A-Punkt Schmuckhandels GmbH v. Schmidt [2006] ECR I–2093.71 Case C–12/00 Commission v. Spain [2003] ECR I–459, para. 76; Case C–416/00 Morellato v. Commune di

Padova [2003] ECR I–9343, paras. 29–30. Compare Case C–159/00 Sapud Audic, n. 25 above, paras. 72–75.72 See also Case C–67/97 Criminal Proceedings against Bluhme [1998] ECR I–8033, para. 21; Cases C–158

and 159/04 Alfa Vita Vassilopoulos AE and Carrefour Marinopoulos AE v. Elliniko Dimosio and NomarchiakiAftodioikisi Ioanninon [2006] ECR I–8135.


goods. It therefore constitutes in principle a measure having equivalent effect within the mean-ing of Article 30 of the Treaty.

The very distinction drawn between selling arrangements and product characteristicsnonetheless generates further questions as to how, for example, cases concerned with the useof products should be regarded. In Mickelsson,73 Advocate General Kokott proposed thatrestrictions on use should be treated analogously with selling arrangements. They shouldtherefore be regarded as falling outside Article 28, provided that they were not product-related, applied to all relevant traders in the national territory, and affected in the same man-ner, in law and fact, domestic and imported goods.

Secondly, even if a rule is categorized as being about selling, it will still be within Article 28 ifthe rule has a differential impact, in law or fact, for domestic traders and importers.74 This ismade clear in paragraph 16 of Keck and is exemplified by the following cases.75

Cases C–34–36/95 Konsumentombudsmannen (KO) v. De Agostini (Svenska) Forlag AB and TV-Shop i Sverige AB

[1997] ECR I–3843


The case concerned a Swedish ban on television advertising directed at children under 12 anda ban on commercials for skincare products. It was argued that this was in breach of Article 30,and hence could not be applied in relation to advertising broadcast from another MemberState. The ECJ, following Leclerc-Siplec, characterized the Swedish law as one concerning sell-ing arrangements. It then continued as follows.

THE ECJ

40. In . . . Keck . . . at paragraph 16, the Court held that national measures restricting or pro-hibiting certain selling arrangements are not covered by Article 30 . . . so long as they apply toall traders operating within the national territory and as long as they affect in the same manner,in law and fact, the marketing of domestic products and of those from other Member States.

41. The first condition is clearly fulfilled in the cases before the national court.42. As regards the second condition, it cannot be excluded that an outright ban, applying in

one Member State, of a type of promotion for a product which is lawfully sold there might havea greater impact on products from other Member States.

43. Although the efficacy of the various types of promotion is a question of fact to be deter-mined in principle by the referring court, it is to be noted that . . . de Agostini stated that televi-sion advertising was the only effective form of promotion enabling it to penetrate the Swedishmarket since it had no other advertising methods for reaching children and their parents.


73 Case C–142/05 Åklagaren v. Mickelsson and Roos, 14 Dec. 2006. At the time of writing the ECJ’s decision isawaited. Compare Case C–110/05 Commission v. Italy, 5 Oct. 2006, Leger AG.

74 The determination of this possible differential impact will often be left to the national court: see, e.g., CaseC–20/03 Burmanjer [2005] ECR I–4133; Case C–441/04 Schmidt, n. 70 above.

75 P. Koutrakos, ‘On Groceries, Alcohol and Olive Oil: More on Free Movement of Goods after Keck’ (2001)26 ELRev. 391.


44. Consequently, an outright ban on advertising aimed at children less than 12 years of ageand of misleading advertising . . . is not covered by Article 30 . . . , unless it can be shown thatthe ban does not affect in the same way, in fact and in law, the marketing of national productsand of products from other Member States.

45. In the latter case, it is for the national court to determine whether the ban is necessaryto satisfy overriding requirements of general public importance or one of the aims listed inArticle 36 of the Treaty, if it is proportionate to that purpose and if those aims or requirementscould not have been attained or fulfilled by measures less restrictive of intra-Community trade.

Case C–405/98 Konsumentombudsmannen (KO) v. Gourmet International Products AB (GIP)

[2001] ECR I–1795


The Swedish Consumer Ombudsman sought an injunction restraining GIP from placing adver-tisements for alcohol in magazines. Swedish law prohibited advertising of alcohol on radio andtelevision, and prohibited advertising of spirits, wines, and strong beer in periodicals other thanthose distributed at the point of sale. The prohibition on advertising did not apply to periodicalsaimed at traders such as restaurateurs. GIP published a magazine containing advertisementsfor alcohol. 90 per cent of the subscribers were traders, and 10 per cent were private individ-uals. GIP argued that the advertising ban was contrary to, inter alia, Article 30. It contended thatthe advertising ban had a greater effect on imported goods than on those produced in Sweden.

THE ECJ

18. It should be pointed out that, according to paragraph 17 of its judgment in Keck andMithouard, if national provisions restricting or prohibiting selling arrangements are to avoidbeing caught by Article 30 of the Treaty, they must not be of such a kind to prevent access tothe market by products from another state or to impede access any more than they impedethe access of domestic products.

19. The Court has also held, in paragraph 42 of . . . De Agostini . . . that it cannot be excludedthat an outright prohibition, applying in one Member State, of a type of product which is law-fully sold there might have a greater impact on products from other Member States.

20. It is apparent that a prohibition on advertising . . . not only prohibits a form of marketinga product but in reality prohibits producers and importers from directing any advertising mes-sages at consumers, with a few insignificant exceptions.

21. Even without its being necessary to carry out a precise analysis of the facts characteris-tic of the Swedish situation, which it is for the national court to do, the Court is able to concludethat, in the case of products like alcoholic beverages, the consumption of which is linked totraditional social practices and to local habits and customs, a prohibition of all advertisementsin the press, on the radio and on television, the direct mailing of unsolicited material or theplacing of posters on the public highway is liable to impede access to the market by productsfrom other Member States more than it impedes access by domestic products, with whichconsumers are instantly more familiar.

. . .



25. A prohibition on advertising such as that in issue . . . must therefore be regarded asaffecting the marketing of products from other Member States more heavily than the market-ing of domestic products and as therefore constituting an obstacle to trade between MemberStates caught by Article 30 of the Treaty.

In de Agostini and Gourmet the relevant advertising ban was total. However the ECJ has alsobrought cases which impeded market access within Article 28. In Franzen Swedish lawrequired a licence for those, including importers, engaged in the making of alcohol or inwholesaling it. This was held to infringe Article 28, since it imposed additional costs onimporters, and because most licences had been issued to Swedish traders.76 In Heimdienst theECJ showed that it was willing to consider the proviso to paragraph 16 of Keck in relation to aselling arrangement that impeded, rather than prevented, access to the market.77

Case C–254/98 Schutzverband gegen unlauteren Wettbewerb v. TK-Heimdienst Sass GmbH

[2000] ECR I–151

The case concerned an Austrian rule relating to bakers, butchers, and grocers. They could makesales on rounds in a given administrative district only if they also traded from a permanentestablishment in that district or an adjacent municipality, where they offered for sale the samegoods as they did on their rounds. The ECJ classified the rule as one relating to selling arrange-ments, since it specified the geographical areas in which such operators could sell their goodsin this manner. The ECJ found that the legislation did have a differential impact on domestictraders and others. Local economic operators would be more likely to have a permanent estab-lishment in the administrative district or an adjacent municipality, whereas others would haveto set up such an establishment, thereby incurring additional costs.

THE ECJ

29. It follows that the application to all operators trading in the national territory of nationallegislation such as that in point in the main proceedings in fact impedes access to the marketof the Member State of importation for products from other Member States more than itimpedes access for domestic products (see to this effect . . . Alpine Investments . . .).

(d) judicial and academic opinion concerningkeck: equality and market access

Reaction to the Keck decision was not generally favourable.78 It was argued that Keck placedtoo much emphasis on factual and legal equality at the expense of market access. The


76 Case C–189/95 Criminal Proceedings against Franzen [1997] ECR I–5909.77 See also Case C–322/01 Deutscher Apothekerverband v. 0800 Doc Morris NV and Jacques Waterval [2003]

ECR I–14887, paras. 68–75; Case C–20/03 Burmanjer, n. 74 above.78 See, e.g., N. Reich, ‘The “November Revolution’’ of the European Court of Justice: Keck, Meng and Audi

Revisited’ (1994) 31 CMLRev. 459; D. Chalmers, ‘Repackaging the Internal Market—The Ramifications of theKeck Judgment’ (1994) 19 ELRev. 385; L. Gormley, ‘Reasoning Renounced? The Remarkable Judgment in Keck


approach in Keck was, as we have seen, to deny that rules relating to selling arrangements camewithin Article 28, provided that such rules did not discriminate in law or fact between tradersfrom different Member States. It was argued that this ignored the importance of marketaccess: trading rules could be formally equal in the preceding sense, and still operate so as toinhibit market access. In so far as this might be so, it would, therefore, be misguided to excludethem from Article 28. This line of argument has been advanced judicially and in the academicliterature. They will be considered in turn.

(i) Judicial Concern

The concern was voiced judicially by Advocate General Jacobs in Leclerc-Siplec.79 The caseconcerned a prohibition on television advertising imposed by French law on the distributionsector, the purpose being to protect the regional press by forcing the sector to advertisethrough that medium. He felt that advertising could play a very important part in breakingdown barriers to inter-state trade, and was therefore unhappy that it should always be outsideArticle 28.80 His preferred approach represented a subtle modification of the Keck formula.

Advocate General Jacobs’ starting point was that all undertakings engaged in legitimateeconomic activity should have unfettered access to the market. If there was a substantialrestriction on that access then it should be caught by Article 28. When the measure affectedthe goods themselves, as in Cassis-type cases, then it would be presumed to have thissubstantial impact. If, however, the contested measure affected selling arrangements and wasnot discriminatory, the substantiality of the impact would depend, inter alia, on: the range ofgoods affected, the nature of the restriction, whether the impact was direct or indirect, and theextent to which other selling arrangements were available. If there was no substantial impact,or the effect on trade was de minimis, then such measures would not be within Article 28. TheECJ however declined to follow the suggestions of the Advocate General and applied Keck tothe case.

The approach suggested by Advocate General Jacobs has nonetheless influenced the ECJ inits more recent jurisprudence. The ECJ has, as seen from de Agostini and Heimdienst, beenwilling to consider market access more seriously, and this has also been emphasized in otherrecent cases.81 It has done so through consideration of whether the proviso to paragraph 16 ofKeck should be applicable. It has considered in particular whether the selling rule could havethe same factual impact for the importer. It was not fortuitous that Advocate General Jacobswrote the Opinions in de Agostini82 and Gourmet International,83 and that the ECJ adoptedmuch of his reasoning.


& Mithouard’ [1994] EBLRev. 63; S. Weatherill, ‘After Keck: Some Thoughts on how to Clarify the Clarification’(1996) 33 CMLRev. 885; Maduro, n. 3 above, 83–87; C. Barnard, ‘Fitting the Remaining Pieces into the Goodsand Persons Jigsaw?’ (2001) 26 ELRev. 35.

79 N. 69 above, paras. 38–45. There is an interesting analogy here with competition law which in effect treatscertain types of cartel behaviour as unlawful in and of themselves, while other types of activity are subjected toa market analysis to determine whether they do impede competition: see Ch. 25.

80 See also Jacobs AG in Case C–384/93 Alpine Investments, n. 76 above; Lenz AG in Case C–391/92Commission v. Greece [1995] ECR I–1621, 1628–1629.

81 Case C–416/00 Morellato, n. 71 above, para. 31; Case C–98/01 Commission v. United Kingdom andNorthern Ireland [2003] ECR I–4641, para. 46.

82 Cases C–34–36/95 de Agostini, n. 67 above, paras. 95–105.83 Case C–405/98 Konsumentombudsmannen (KO) v. Gourmet International Products AB (GIP) [2001] ECR

I–1795.


Judicial concern has been voiced more recently by Advocate General Maduro in Alfa Vita.84

He noted that while Keck was intended to clarify the ambit of Article 28 it had ‘proved to be asource of uncertainty for economic operators’85 because of difficulties in distinguishingbetween rules relating to selling arrangements and product characteristics. It had also led todifficulty since this distinction did not apply in other areas of free movement, which could beespecially problematic when the same facts raised issues concerning, for example, goods andservices.86

Advocate General Maduro therefore proposed three criteria to guide the resolution ofcases.87 First, discriminatory provisions, whether direct or indirect, were prohibited. Secondly,the imposition of supplementary costs on cross-border activity had to be justified. This servedto explain classic Cassis de Dijon-type cases, where the imported products already had to com-ply with product rules and the attendant costs of the State of origin. The exclusion of sellingarrangements from Article 28 was, said Maduro, explicable because they normally did notimpose such costs, but where they did so they should be caught by Article 28. Thirdly, ‘anymeasure which impedes to a greater extent the access to the market and the putting intocirculation of products from other Member States is considered to be a measure havingequivalent effect within the meaning of Article 28 EC’.88

(ii) Academic Concern

The academic argument for an approach based on market access was put forcefully byWeatherill.89 He drew upon the reasoning of Advocate General Jacobs considered above, andon jurisprudence concerned with Articles 49 and 39.90 Weatherill argued that the correctapproach to Article 28, and the other Treaty Articles was to focus upon market access, and notjust factual and legal equality. The reason the applicants failed in Keck was that ‘they weremeasures applying equally in law and in fact and exercising no direct impediment to the accessto markets of a Member State’.91 He proposed the following test.

S. Weatherill, After Keck: Some Thoughts on How to Clarify the Clarification92

Measures introduced by authorities in a Member State which apply equally in law and in factto all goods and services without reference to origin and which impose no direct or substantialhindrance to the access of imported goods or services to the market of that Member Stateescape the prohibition of Articles 30 and 59.93


84 Cases C–158 and 159/04 Alfa Vita, n. 72 above.85 Ibid., para. 31, Maduro AG.86 Ibid., paras. 33, 51.87 Ibid., paras. 43–45.88 Ibid., para. 45.89 (1996) 33 CMLRev. 885.90 Case C–384/93 Alpine Investments, n. 45 above; Case C–415/93 Union Royale Belge des Sociétés de Football

Association ASBL v. Jean-Marc Bosman [1995] ECR I–4921.91 N. 89 above, 895.92 Ibid., at 885, 896–897, 904–906, italics in the original.93 Now Arts. 28 and 49.


[Weatherill summarizes the argument in the following way :]Pre-Keck, the Court had lost sight of the link between Article 30 and internal market building

by pushing it too far in the direction of general review of national market regulation disassoci-ated from a need to show a hindrance to trading activities aimed at the realization of theinternal market. The most notorious example was the ‘Sunday Trading’ saga. The subjection ofall measures of national market regulation to supervision under Community law was beginningto damage the image and legitimacy of the European Court. Keck exploded the notion thatthere might be an individual ‘right to trade’ capable of vindication via EC internal market law,but Keck itself created a risk of toppling too far in the opposite direction, thereby imperilling theinternal market, by focusing on factual and legal equality of application to the exclusion of ques-tions of market access and obstruction to the construction of the cross-border commercialstrategies. The principal significance of the post-Keck adjustment is the welcome confirmationthat internal market law is not confined to supervision of measures that are legally or factuallyunequal in application. . . .

In Keck, Leclerc-Siplec and other similar cases, the limit on commercial freedom could notbe directly connected to any cross-border aspect of the activity. In Alpine Investments, by con-trast, the cross-border aspect was of direct significance; so too in Bosman, whose access toemployment in another state was directly affected by the rules.

. . . The injection of an adequate cross-border element enables a claim not simply to an equal-ity right, but instead to the dynamic protection of Community law on free movement, subjectonly to the capacity of the regulator to show justification for the restrictions. . . .

The academic argument in favour of market access was reinforced by Barnard who, likeWeatherill, drew on case law from persons and services, as well as goods.

C. Barnard, Fitting the Remaining Pieces into the Goods and Persons Jigsaw?94

[A]n approach based on the access to the market provides us with a more sophisticated frame-work for analysing the goods and persons case law. . . . [T]his is the approach advocated byAdvocate General Jacobs in Leclerc. Non-discriminatory measures which directly and sub-stantially impede access to the market (including the extreme case of preventing access to themarket altogether) breach the Treaty provision unless they can be justified under one of thepublic interest grounds or the express derogations and are proportionate (Schindler, Alpine andBosman). In the case of non-discriminatory measures which do not substantially hinder accessto the market the Court will say either that the impediment is too uncertain and remote and sodoes not breach the Treaty provision at all (Graf, Krantz), or that the measure has no effectwhatsoever on inter-state trade and so is not caught by EC law at all—the outcome is thesame. This means that national restrictions on, for example, planning or the green belt, whichwere introduced for a variety of environmental and social reasons not directly concerned withinter-state trade, can be dealt with adequately. They are not ‘certain selling arrangements’ inthe formal sense, but they are not discriminatory and they do not substantially hinder accessto the market. Similarly, national restrictions on the opening hours of shops do not substan-tially hinder access to the market but merely curtail the exercise of that freedom. Howeverextreme limits on opening hours may well substantially hinder access to the market and soshould breach Article 28 and need to be justified.


94 (2001) 26 ELRev. 35, 52.


(e) keck, article 28, and market access:meaning and application

Market access may well be the idea underlying the jurisprudence on free movement. It is, how-ever, necessary to clarify the meaning and application of this concept.

First, it is important to be clear about the meaning accorded to market access in the ECJ’s caselaw on goods. In Keck prevention or impediment to market access appeared to be simply theconsequence of a national rule that applied differentially as between domestic traders andimporters: paragraphs 16 and 17. The focus in the post-Keck case law was on the existence ofsuch factual or legal differentiation. The ECJ has more recently subtly shifted its position,according greater status to market access in its own right. In Gourmet International95 the ECJstated that selling arrangements would be outside Article 28 only if they did not prevent accessto the market by imported products or impede access by imports more than they impededaccess by domestic products.

Secondly, it is equally important to understand the general meaning of market access. Marketaccess can be viewed from the perspective of both producer and consumer. For the producer,free movement facilitates sales of goods into different national markets, with the primaryobjective of challenging existing producers in the country of import and the secondaryobjective of allowing economies of scale to be reaped. Market access is a means to an end, theend being to maximize sales/profits for the individual producer, and to enhance the optimalallocation of resources for the Community as a whole. From the perspective of the consumer,free movement increases choice. If Germans are given the option of drinking Dutch beer thensome may prefer it to the domestic product.

Thirdly, it is doubtful whether a rigid distinction can be drawn between dynamic and staticselling arrangements so far as market access is concerned. The market-access approach is nor-mally thought to apply to dynamic selling arrangements. There is, however, a reluctance toapply the reasoning to static selling arrangements, in the sense of shop hours, locations, andthe like. If, however, limitations on the mode of marketing/advertising are to be regarded asgoing to market access, then why should this not also be so in terms of limitations on points ofsale? The success of the producer in penetrating new markets may be affected by limitationson where and when goods can be sold as by constraints on marketing.96 It may be argued thatrestrictions on where and when goods can be sold would not have a direct and substantialimpact on market access. This is, however, contingent on the factual circumstances of the par-ticular case. It cannot be regarded as an a priori proposition. It is similarly difficult to main-tain a rigid distinction between rules going to access and those that merely affect the volumeof sales. A producer perceives rules that limit advertising as detrimental because they will leadto a reduction in sales. There is no difference between a rule prohibiting certain forms of mar-keting or advertising leading to a diminution in sales of 30 per cent, and a rule which limits thenumber or operating hours of shops, leading to the same sales reduction. Both rules can affectthe volume of sales and penetration of the new market. Non-discriminatory static sellingarrangements may therefore, as Barnard rightly notes, substantially hinder market access.97

Finally, we must be cognizant of the difficulties of applying a test based on direct and substan-tial impact of access to the market. Proponents of the test recognize that this can be difficult to


95 Case C–405/98 Gourmet International, n. 83 above, para. 18.96 This was the argument made, unsuccessfully, in Cases C–418–421, 460–462, and 464/93, 9–11, 14–15,

23–24, and 332/94 Semeraro, n. 56 above.97 Barnard, n. 94 above, 52; C. Barnard, The Substantive Law of the EU: The Four Freedoms (Oxford

University Press, 2004), 144–148.


estimate.98 A court may have to take into account the range of goods affected, the existence ornot of alternative selling arrangements, and the nature of the restriction itself. This will not bean easy task for the ECJ. It will be even more difficult for national courts.99 However, the ECJmay provide guidance to the national court, as in de Agostini,100 or it may go further and statethere has been an impediment to market access, as in Gourmet International.101 It is true thatthe ECJ, CFI, and national courts have to face not dissimilar tasks in the context of competi-tion law, when deciding whether an agreement has an effect on competition. There are, how-ever, real differences between the two areas. In competition law the backdrop to the inquiry isa developed micro-economic theory about cartels which deviate from perfect or imperfectcompetition; in free movement of goods there is no ready consensus on what does or does notcome within the meaning of market access. In competition law private agreements are atstake; in free movement it is national regulations.

(f) summary and choicesi. The case law prior to Keck exemplified the difficulties in defining the outer boundaries of

Article 28. The ECJ in its pre-Keck jurisprudence was being asked to apply this Article toan ever-wider range of rules, the effect of which on trade was marginal. We have seen,however, that Keck itself was criticized for being overly formalistic, by drawing a distinc-tion between rules relating to the characteristics of the product and those concerning sell-ing arrangements, which is unsatisfactory. This dissatisfaction led to the call to focus onmarket access. There are in essence three choices concerning the approach to Article 28.

ii. The first choice is to use prevention, or direct and substantial hindrance, of access to themarket as the criterion for the applicability of Article 28. This would be beneficial in focus-ing attention on a key policy reason underlying free movement of goods, services, andpersons. The need to consider whether there has been some substantial restriction ofmarket access does, however, inevitably entail costs, both for courts applying the test andfor private parties who may be uncertain about the legality of their planned conduct.

iii. The second choice is for a test based on substantial hindrance to market access, subject topresumptions based on the type of case. This was the approach of Advocate General Jacobsin Leclerc-Siplec.102 When the measure affected the goods themselves, as in Cassis-typecases, then it would be presumed to have this substantial impact. If, however, thecontested measure affected selling arrangements and was not discriminatory, the sub-stantiality of the impact would depend on factors such as the range of goods affected, thenature of the restriction, whether the impact was direct or indirect, and the extent towhich other selling arrangements were available. It would on this view still be necessary todistinguish between cases concerning product characteristics and those concerningselling arrangements.

iv. The third choice would be to persist with the test in Keck as developed by later case law.Selling arrangements are presumptively outside Article 28, but can be caught either by


98 Weatherill, n. 89 above, 898–901; Barnard, n. 94 above, 55–56.99 National courts are intended to apply Art. 28 and hence to disapply conflicting national law of their own

initiative, subject always to the possibility of an Art. 234 reference: Case C–358/95 Tommaso Morellato v. UnitàSanitairia Locale (USL) No. 11 di Pordenone [1997] ECR I–1431.

100 Cases C–34–36/95 de Agostini, n. 67 above.101 Case C–405/98 Gourmet International, n. 83 above.102 N. 69 above.


being reclassified as concerned with product characteristics, or because they have a differ-ential application in law or fact. The ECJ in Keck intended to draw a more formal line asto the types of rule caught by Article 28. It was hoped that public and private costs wouldthereby be reduced, and that there would be clearer guidance on the limits of legitimatetrading activity. However the more the ECJ reclassifies cases, the more closely it inquiresinto whether a selling arrangement has a differential impact, and the more it places directemphasis on market access, the less certain is the outcome in any particular case. Thereduction in public and private costs thereby diminishes, and the guidance on the legit-imate limits of trading activity becomes less clear.

v. The indications are that the ECJ is in reality moving away from the third test, and towardsthe second.

7. defences to discriminatory measures: article 30

If trade rules are found to be discriminatory103 they can be saved through Article 30(ex Article 36):

The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports,exports or goods in transit justified on grounds of public morality, public policy or public secur-ity; the protection of health and life of humans, animals or plants; the protection of nationaltreasures possessing artistic, historic or archaeological value; or the protection of industrialand commercial property. Such prohibitions or restrictions shall not, however, constitute ameans of arbitrary discrimination or a disguised restriction on trade between Member States.

It will come as no surprise to learn that the Court has construed Article 30 strictly.Discriminatory rules will be closely scrutinized to ensure that the defence pleaded is war-ranted on the facts of the case, and they must also pass a test of proportionality: the discrim-inatory measure must be the least restrictive possible to attain the end in view. The burden ofproof under Article 30 rests with the Member State.104

(a) public moralityTwo of the main precedents concerned challenges to laws dealing with pornography. In Hennand Darby105 the ECJ was willing to accept that a UK ban on the import of pornography couldbe justified under what is now Article 30, notwithstanding the fact that domestic law did notban absolutely the possession of such material. The ECJ concluded that the overall purpose ofUK law was to restrain the manufacture and marketing of pornography, and that there was nolawful trade in such goods within the UK. However, a different result was reached in Conegate.


103 It may of course be debatable whether a rule really is discriminatory, and therefore whether it is caughtby Art. 28, and requires justification under Art. 30. A good example is Case C–2/90 Commission v. Belgium[1992] ECR I–4431, noted by L. Hancher and H. Sevenster (1993) 30 CMLRev. 351, and D. Geradin (1993) 18ELRev. 144.

104 Case C–17/93 Openbaar Ministerie v. Van der Veldt [1994] ECR I–3537.105 Case 34/79 R. v. Henn and Darby [1979] ECR 3795.


Case 121/85 Conegate Ltd. v. Commissioners of Customs and Excise[1986] ECR 1007

[Note ToA renumbering: Arts. 30, 36, and 177 are now Arts. 28, 30, and 234]

Conegate imported life-size inflatable dolls from Germany into the UK. The invoice for the dollsclaimed that they were for window displays, but the Customs officials were unconvinced, par-ticularly when they found items described as ‘love love dolls’. They seized the goods, andmagistrates ordered them to be forfeit. Conegate argued that the seizure and forfeiture werein breach of Article 30. The national court asked whether a prohibition on imports could bejustified even though the State did not ban the manufacture or marketing of the same goodswithin the national territory. The ECJ repeated its reasoning from Henn and Darby that it wasfor each Member State to decide upon the nature of public morality for its own territory. It con-tinued as follows.

THE ECJ

15. However, although Community law leaves the Member States free to make their ownassessments of the indecent or obscene character of certain articles, it must be pointed outthat the fact that goods cause offence cannot be regarded as sufficiently serious to justifyrestrictions on the free movement of goods where the Member State concerned does notadopt, with respect to the same goods manufactured or marketed within its territory, penalmeasures or other serious and effective measures intended to prevent the distribution of suchgoods in its territory.

16. It follows that a Member State may not rely on grounds of public morality to prohibit theimportation of goods from other Member States when its legislation contains no prohibitionon the manufacture or marketing of the same goods on its territory.

17. It is not for the Court, within the framework of the powers conferred on it by Article 177. . . to consider whether, and to what extent, the United Kingdom legislation contains such aprohibition. However, the question whether or not such a prohibition exists in a State com-prised of different constituent parts which have their own internal legislation can be resolvedonly by taking into consideration all the relevant legislation. Although it is not necessary, for thepurposes of the application of the above-mentioned rule, that the manufacture and marketingof the products whose importation has been prohibited should be prohibited in the territory ofall the constituent parts, it must at least be possible to conclude from the applicable rules,taken as a whole, that their purpose is, in substance, to prohibit the manufacture and market-ing of those products.

18. In this instance . . . the High Court took care to define the substance of the national legis-lation the compatibility of which with Community law is a question which it proposes todetermine. Thus it refers to rules in the importing Member State under which the goods inquestion may be manufactured freely and marketed subject only to certain restrictions . . .namely an absolute prohibition on the transmission of such goods by post, a restriction on theirpublic display and, in certain areas of the Member States concerned, a system of licensing ofpremises for the sale of those goods to customers aged 18 years and over. Such restrictionscannot however be regarded as equivalent in substance to a prohibition on manufacture andmarketing.

The UK defence based on what is now Article 30 failed. The distinction between Conegateand Henn and Darby lies in the ECJ’s evaluation of whether the banned imported goods were

defences to discriminatory measures | 697


being treated more harshly than similar domestic goods. In Henn and Darby the ECJ was will-ing to find that UK law restrained the manufacture and marketing of pornography sufficientlyto enable it to conclude that there was no lawful trade in such goods within the UK. InConegate, by way of contrast, the ECJ reached the opposite conclusion.

It is clear, then, that while Member States are free to determine the sense of public moralityapplicable within their territory, they cannot place markedly stricter burdens on goods com-ing from outside than those that are applied to equivalent domestic goods.

(b) public policyPublic policy constitutes a separate head of justification within Article 30. The phrase ispotentially broad, but the ECJ has resisted attempts to interpret it too broadly. The Court has,for example, rejected arguments that the term ‘public policy’ can embrace consumer protec-tion. The ECJ has reasoned that since Article 30 derogates from a fundamental rule of theTreaty enshrined in Article 28, it must be interpreted strictly, and cannot be extended toobjectives not expressly mentioned therein.106 A public policy justification must, therefore, bemade in its own terms, and cannot be used as a means to advance what amounts to a separateground for defence. It is for this reason that relatively few cases contain detailed examinationof the public policy argument. The issue was considered in Centre Leclerc:

Case 231/83 Cullet v. Centre Leclerc[1985] ECR 305


French legislation imposed minimum retail prices for fuel fixed primarily on the basis of Frenchrefinery prices and costs. The Court found that this constituted an MEQR within Article 30,since imports could not benefit fully from lower cost prices in the country of origin. The FrenchGovernment sought to justify its action on the basis, inter alia, of public policy within Article 36.It argued that, in the absence of the pricing rules, there would be civil disturbances, blockades,and violence. Both the Advocate General and the ECJ rejected this argument, but for differentreasons.

ADVOCATE GENERAL VERLOREN VAN THEMAAT107

However, I would add that the acceptance of civil disturbances as justification for encroach-ments upon the free movement of goods would, as is apparent from experiences of last year(and before, during the Franco–Italian ‘wine war’) have unacceptably drastic consequences. Ifroadblocks and other effective weapons of interest groups which feel threatened by theimportation and sale at competitive prices of certain cheap products or services, or by immi-grant workers or foreign businesses, were accepted as justification, the existence of the fourfundamental freedoms of the Treaty could no longer be relied upon. Private interest groupswould then, in the place of the Treaty and Community (and, within the limits laid down by the


106 Case 113/80 Commission v. Ireland [1981] ECR 1625; Case 177/83 Kohl v. Ringelhan [1984] ECR 3651;Case 229/83 Leclerc v. Au Blé Vert [1985] ECR 1.

107 [1985] 2 CMLR 524, 534.


Treaty, national) institutions, determine the scope of those freedoms. In such cases, the con-cept of public policy requires, rather, effective action on the part of the authorities to deal withsuch disturbances.

THE ECJ

32. For the purpose of applying Article 36, the French Government has invoked the disturb-ances to law and order (ordre public) and public security caused by violent reactions whichshould be expected from retailers affected by unrestricted competition.

33. On this point it is sufficient to observe that the French Government has not shown thatan amendment of the regulations in question in conformity with the principles set out abovewould have consequences for law and order (ordre public) and public security which the FrenchGovernment would be unable to meet with the resources available to it.

Thus, while the Advocate General rejected the French argument on principle, the ECJappeared to accept that it could be pleaded under what is now Article 30, while rejecting it onthe facts. The ECJ’s approach might well have been simply a more diplomatic way of disposingof the point, but the Advocate General is more convincing as a matter of principle. If interest-group pressure leading to potential violence could constitute justification under Article 30then fundamental Community freedoms would be placed in jeopardy.108

(c) public security

Case 72/83 Campus Oil Ltd. v. Minister for Industry and Energy[1984] ECR 2727


Irish law required importers of petrol into Ireland to buy 35 per cent of their requirements froma state-owned oil refinery at prices fixed by the Irish Government. This rule was held to consti-tute a MEQR within Article 30. In defence Ireland relied on public policy and security withinArticle 36. It argued that it was vital for Ireland to maintain its own oil refining capacity. The chal-lenged rule was the means of ensuring that its refinery products could be marketed.109 TheECJ held that recourse to Article 36 would not be possible if there were Community rules pro-viding the necessary protection for oil supplies. Certain Community measures existed, butthey were not comprehensive. The Court continued as follows.


108 In Case C–265/95 Commission v. France [1997] ECR I–6959, the ECJ accepted that serious disruption topublic order could justify non-intervention by the police in relation to a specific incident, but that it could notjustify any general policy of this nature. See also R. v. Chief Constable of Sussex, ex p. International Traders’ FerryLtd. [1997] 2 CMLR 164.

109 The applicants who challenged the Irish system argued that the real issue was not whether Ireland shouldmaintain an independent refining capacity, but whether such a refinery should operate at a profit or loss. Theyclaimed that this was an economic issue which could not come within public policy or security.


THE ECJ

31. Consequently, the existing Community rules give a Member State whose supplies ofpetroleum products depend totally or almost totally on deliveries from other countries certainguarantees that deliveries from other Member States will be maintained in the event of aserious shortfall in proportions which match those of supplies to the market of the supplyingState. However, this does not mean that the Member State concerned has an unconditionalassurance that supplies will in any event be maintained at least at a level sufficient to meet itsminimum needs. In those circumstances, the possibility for a Member State to rely on Article36 to justify appropriate complementary measures at national level cannot be excluded, evenwhere there exist Community rules on the matter.[The Court then considered whether the term ‘public security’ could cover this situation.]

34. It should be stated in this connection that petroleum products, because of their excep-tional importance as an energy source in the modern economy, are of fundamental importancefor a country’s existence since not only its economy but above all its institutions, its essentialpublic services and even the survival of the inhabitants depend upon them. An interruption ofsupplies of petroleum products, with the resultant dangers for the country’s existence, couldtherefore seriously affect the public security that Article 36 allows States to protect.

35. It is true that, as the Court has held on a number of occasions, most recently in . . .(Case 95/81, Commission v Italy), Article 36 refers to matters of a non-economic nature. AMember State cannot be allowed to avoid the effects of measures provided for in the Treaty bypleading the economic difficulties caused by elimination of barriers to intra-Community trade.However, in the light of the seriousness of the consequences that an interruption in suppliesof petroleum products may have for a country’s existence, the aim of ensuring a minimumsupply of petroleum products at all times is to be regarded as transcending purely economicconsiderations and thus as capable of constituting an objective covered by the concept ofpublic security.

36. It should be added that to come within the ambit of Article 36 the rules in question mustbe justified by objective circumstances corresponding to the needs of public security. . . .

37. As the Court has previously stated . . . Article 36, as an exception to a fundamental prin-ciple of the Treaty, must be interpreted in such a way that its scope is not extended any furtherthan is necessary for the protection of the interests which it is intended to secure and themeasures taken pursuant to that Article must not create obstacles to imports which are dis-proportionate to those objectives. Measures adopted on the basis of Article 36 can thereforebe justified only if they are such as to serve the interest which that Article protects and if theydo not restrict intra-Community trade more than is absolutely necessary.

While the ECJ, therefore, accepted the public-security argument in Campus Oil, thecircumstances to which it will be applicable are likely to be factually limited.110 There is littleenthusiasm for extending the reasoning, and in Centre Leclerc Advocate General VerLoren vanThemaat distinguished Campus Oil from the situation in Centre Leclerc.111

It should not, however, be forgotten in this respect that Member States can take certainmeasures relating to national security pursuant to what are now Articles 296 to 298 EC.


110 Case C–367/89 Richardt [1991] ECR I–4621; Case C–398/98 Commission v. Greece [2001] ECR I–7915,paras. 29–30; but compare Case C–503/99 Commission v. Belgium [2002] ECR I–4809, para. 46.

111 [1985] 2 CMLR 524, 535–536.


(d) protection of health and life ofhumans, animals, or plants

There have been numerous cases in which States have attempted to defend measures on thisground. The ECJ will closely scrutinize such claims.

First, the Court will determine whether the protection of public health is the real purposebehind the Member States’ action, or whether it was designed to protect domestic producers. Thisis exemplified by Commission v. United Kingdom.112 The UK in effect banned poultry meatimports from most other Member States, justifying this on the ground that it was necessary toprotect public health, by preventing the spread of Newcastle disease which affected poultry.The ECJ held that the import ban was in fact motivated more by commercial reasons, to blockFrench poultry, than by considerations of public health.113 The ECJ will also closely examinethe cogency of arguments concerning public health to determine whether they make sense onthe facts.114

Secondly, the ECJ may have to decide whether a public-health claim is sustainable where thereis no perfect consensus on the scientific or medical impact of particular substances. The ECJ’sapproach is exemplified by the Sandoz decision.

Case 174/82 Officier van Justitie v. Sandoz BV[1983] ECR 2445

Authorities in Holland refused to allow the sale of muesli bars that contained added vitamins,on the ground that the vitamins were dangerous to public health. The muesli bars were readilyavailable in Germany and Belgium. It was accepted that vitamins could be beneficial to health,but it was also acknowledged that excessive consumption could be harmful to health.Scientific evidence was not, however, certain as regards the point at which consumption ofvitamins became excessive, particularly because vitamins consumed in one source of foodmight be added to those eaten from a different food source. There had been some Communitylegislation which touched on the general issue of food additives.

THE ECJ

15. The above mentioned Community measures clearly show that the Communitylegislature accepts the principle that it is necessary to restrict the use of food additives to thesubstances specified, whilst leaving the Member States a certain discretion to adopt stricterrules. . . .

16. As the Court found in its judgment . . . in Case 272/80 (Frans-Nederlandse Maatschappijvoor Biologische Producten [1981] ECR 3277), in so far as there are uncertainties at thepresent state of scientific research it is for the Member States, in the absence of harmoniza-tion, to decide what degree of protection of the health and life of humans they intend toassure, having regard however for the requirements of the free movement of goods within theCommunity.


112 Case 40/82 [1982] ECR 2793.113 The ECJ also noted that less stringent measures could have been taken to reach the same end as that

desired by the UK government: ibid., para. 41. See also Case 42/82 Commission v. France [1983] ECR 1013.114 Case 124/81 Commission v. United Kingdom [1983] ECR 203.


17. Those principles also apply to substances such as vitamins which are not as a generalrule harmful in themselves but may have special harmful effects solely if taken to excess aspart of the general nutrition, the composition of which is unforeseeable and cannot bemonitored. In view of the uncertainties inherent in the scientific assessment, national rulesprohibiting, without prior authorization, the marketing of foodstuffs to which vitamins havebeen added are justified on principle within the meaning of Article 36 of the Treaty on thegrounds of the protection of human health.

18. Nevertheless the principle of proportionality which underlies the last sentence of Article36 of the Treaty requires that the power of the Member States to prohibit imports of the prod-ucts in question from other Member States should be restricted to what is necessary to attainthe legitimate aim of protecting public health. . . .

19. Such an assessment is, however, difficult to make in relation to additives such as vita-mins the above mentioned characteristics of which exclude the possibility of foreseeing ormonitoring the quantities consumed as part of the general nutrition and the degree of harm-fulness of which cannot be determined with sufficient certainty. Nevertheless, although inview of the present stage of harmonization of national laws at the Community level a wide dis-cretion must be left to the Member States, they must, in order to observe the principle of pro-portionality, authorize marketing when the addition of vitamins to foodstuffs meets a realneed, especially a technical or nutritional one.

20. The first question must therefore be answered to the effect that Community lawpermits national rules prohibiting without prior authorization the marketing of foodstuffsmarketed in another Member State to which vitamins have been added, provided that the mar-keting is authorized when the addition of the vitamins meets a real need, especially a technicalor nutritional one.

The ECJ’s approach in Sandoz is finely tuned. It will decide whether the public-health claimis sustainable in principle. If there is uncertainty about the medical implications of some sub-stance it will,115 in the absence of Community harmonization measures, be for the MemberState to decide upon the appropriate degree of protection for its citizens. This will, however,be subject to the principle of proportionality: paragraph 18.116 When assessing proportional-ity the Community Courts will pay special attention to the factual basis of the defence. It is notenough for a Member State simply to assert that a measure is warranted on grounds of publichealth. It will also need to produce evidence or data to substantiate this claim.117 This is soeven where there may be some scientific uncertainty about the matter in issue.118

Thirdly, a Member State might not ban imports, but it might subject them to checks that ren-dered import more difficult, and it might do so even though the goods were checked in the State oforigin. This problem of double-checking has arisen frequently, and the ECJ has becomestricter over time.


115 See, however, Case 178/84 Commission v. Germany [1987] ECR 1227.116 See also Case 53/80 Officier van Justitie v. Koniklijke Kaasfabriek Eyssen BV [1981] ECR 409; Case 94/83

Albert Heijin BV [1984] ECR 3263; Case 304/84 Ministère Public v. Muller [1986] ECR 1511; Case C–62/90Commission v. Germany [1992] ECR I–2575; Case C–192/01 Commission v. Denmark [2003] ECR I–9693, para.42; Case C–24/00 Commission v. France [2004] ECR I–1277, para. 49; Case C–95/01 Criminal Proceedingsagainst John Greenham and Leonard Abel [2004] ECR I–1333; Case C–366/04 Schwarz v. Burgermeister derLandeshauptstadt Salzburg [2005] ECR I–10139, paras. 30–38.

117 Case 270/02 Commission v. Italy [2004] ECR I–1559.118 Case C–41/02 Commission v. Netherlands [2004] ECR I–11375; Case C–192/01 Commission v. Denmark,

n. 116 above; Case C–24/00 Commission v. France, n. 116 above.


The early approach in Denkavit119 was to urge national authorities to co-operate to avoiddual burdens. National authorities had a duty to ascertain whether the documents from theState of export raised a presumption that the goods complied with the demands of theimporting State. The Court admitted, however, that a second set of checks in the State ofimport might be lawful, provided that the requirements were necessary and proportionate.

The Court’s more recent case law exhibits a healthy scepticism regarding whether a secondset of controls is really required. This is evident from Commission v. United Kingdom120 con-cerning UHT milk. The ECJ held that the UK’s concerns about the product could be met byless restrictive means than the import ban and marketing system which it had instituted. TheUK could, said the Court, lay down requirements that imported milk had to meet, and coulddemand certificates from the authorities of the exporting State.121 If such certificates wereproduced then it would be for the authorities within the importing State to ascertain whetherthese certificates raised a presumption that the imported goods complied with the demandsof domestic legislation. The ECJ concluded that the conditions for such a presumption existedin this case.122 A similar unwillingness to subject goods to a second set of checks can be seen inthe Biologische Producten case.123 Dual checks would not be lawful where they unnecessarilyimposed technical tests that had already been done in the State of origin, nor where the prac-tical effect of the tests in the exporting State met the demands of the importing State.124

(e) other grounds for validating discriminatory measures?

The nature of this problem will be explored here and then considered in more detail below.125

The list of defences for discriminatory rules caught by Article 28 is contained in Article 30.The ECJ has extended Article 28 to indistinctly applicable rules, and created defences thatoverlap with, but are not identical to, those found in Article 30. The salient issue is thereforewhether justification for discriminatory rules is limited to the specific matters listed in Article30, or whether a rule that is discriminatory might also be defended on one of the groundslisted in Cassis,126 as developed by subsequent case law. The traditional view was that aMember State could not justify a discriminatory measure on grounds other than those listedin Article 30. This was so, even if the justification was in the list that could be invoked for indis-tinctly applicable measures.127

It was questionable whether Commission v. Belgium128 was an exception to this proposition.The Commission challenged a Belgian regional decree, the effect of which was to ban the


119 Case 251/78 Denkavit Futtermittel v. Minister für Ernährung, Landwirtschaft und Forsten des Landes[1979] ECR 3369.

120 Case 124/81 Commission v. United Kingdom [1983] ECR 203.121 Ibid., paras. 27–28.122 Ibid., para. 30.123 Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277.124 Ibid., paras. 14–15; Case C–400/96 Criminal Proceedings against Jean Harpegnies [1998] ECR I–5121;

Case C–432/03 Commission v. Portugal [2005] ECR I–9665, para. 46.125 See below, 00–00; P. Oliver, ‘Some Further Reflections on the Scope of Articles 28–30 (ex 30–36)’ (1999)

36 CMLRev. 738; J. Scott, ‘Mandatory or Imperative Requirements in the EU and WTO’, in Barnard and Scott(eds.), n. 24 above, ch. 10; P. Oliver and W.-H. Roth, ‘The Internal Market and the Four Freedoms’ (2004) 41CMLRev. 407, 434–436.

126 Case 120/78 Cassis de Dijon, n. 2 above.127 See 00–00 below.128 Case C–2/90 [1992] ECR I–4431.


importation of waste into that area. The decree could be seen as discriminatory, since it did notcover disposal of locally produced waste. Notwithstanding this, the Court allowed environ-mental protection to be taken into account when considering the legality of the regional decree.The case could, therefore, be seen as allowing justifications to be pleaded which are not foundin Article 30. However, the ECJ in effect held that the decree was not discriminatory, notwith-standing appearances to the contrary in the challenged instrument. This was because of thespecial nature of the subject-matter, waste. There were strong arguments, the Court said, fordisposing of such material locally, and each area had the responsibility for disposing of its ownwaste. Thus, although the decree applied only to imports it was not discriminatory.129

The relationship between Article 30 and the exceptions in Cassis is complicated by the factthat the dividing line between cases involving indirect discrimination and indistinctly applic-able rules can be a fine one. This is exemplified by Commission v. Austria,130 which concernedan Austrian rule banning lorries in excess of a certain weight from using certain roads in orderto protect the environment and air quality. Advocate General Geelhoed acknowledged that itwas open to question whether the rule should be regarded as indirectly discriminatory orindistinctly applicable, and accepted that this could have implications for whether protectionof the environment could be pleaded by way of defence. The ECJ implicitly assumed that theAustrian rule was indistinctly applicable and that therefore protection of the environmentcould constitute an objective justification.

Advocate General Jacobs in PreussenElektra131 has, however, questioned whether the list inArticle 30 really is exhaustive. He argued that the approach in the Walloon Waste case wasflawed, in the sense that whether a measure was discriminatory was logically distinct fromwhether it could be justified. He suggested moreover that there could be good reasons forallowing environmental protection to be pleaded as a justification, even in cases where therewas direct discrimination. He argued more generally for a relaxation in the distinctionbetween the justifications that could be pleaded under Article 30, and the rule of reason excep-tions to Cassis. The ECJ did not, as Advocate General Jacobs suggested, give general guidanceon the relationship between Article 30 and the exceptions to Cassis. It did however allow thenational measure to be justified on environmental grounds.132

It will be argued below that the same justifications should be applicable, irrespective ofwhether the measure is discriminatory or not, although the application of the justificationcould be affected by this factor.133

(f) the relationship between harmonization and article 30

Community harmonization measures may make recourse to Article 30 inadmissible. This willbe so where the Community measure is intended to harmonize the area totally. Member Stateaction is thereby pre-empted. Thus in Moormann134 the ECJ held that the existence of


129 For indications that protection of the environment can however be raised in discrimination cases see,e.g., Case C–203/96 Chemische Afvalstoffen Dusseldorp BV v. Minister van Volkshuisvesting, Ruimtelijke Ordeningen Milieubeheer [1998] ECR I–4075, para. 50.

130 Case C–320/03 [2005] ECR I–9871.131 Case C–379/98 PreussenElektra AG v. Schleswag AG [2001] ECR I–2099, paras. 225–238. See also Case

C–320/03 Commission v. Austria [2005] ECR I–9871, paras. 96–108, Geelhoed AG.132 See also Case C–389/98 Aher-Waggon GmbH v. Bundesrepublik Deutschland [1998] ECR I–4473.133 See below, 00–00.134 Case 190/87 Oberkreisdirektor v. Moormann BV [1988] ECR 4689. See also Case 5/77 Tedeschi v. Denkavit

[1977] ECR 1555; Cases C–277, 318, and 319/91 Ligur Carni Srl v. Unità Sanitaria Locale No. XV di Genova


harmonization measures for poultry health inspections meant that a State could no longer useArticle 30 to legitimate national rules on the matter. In Commission v. Germany135 it was heldthat Community directives had harmonized the measures that could be taken ‘for the detec-tion of a pronounced sexual odour in uncastrated male pigs’, thereby preventing Germanyfrom applying different measures.

Many Community measures are however not intended to harmonize an area totally. Theobjective will be minimum harmonization. It will be for the ECJ to decide, in the case ofdoubt, whether the harmonization measure covers the whole field or whether it leaves roomfor national regulatory initiatives.136 In the case of minimum harmonization, Member Statesare permitted to ‘maintain and often to introduce more stringent regulatory standards thanthose prescribed by Community legislation, for the purposes of advancing a particular socialor welfare interest, and provided that such additional requirements are compatible with theTreaty’.137 Thus in de Agostini it was held that Community directives on ‘Television withoutFrontiers’ only partially harmonized the relevant law. They did not preclude national rules tocontrol television advertising designed to protect consumers.138 In the case of exhaustiveharmonization, any national measure relating thereto must be assessed in the light of the har-monizing measure rather than the Treaty provisions.139

The ECJ will ensure that such national regulations are proportionate and do not constitutea means of arbitrary discrimination.140 Difficult issues can however arise, even in the contextof minimum harmonization, as to whether a Member State can impose more stringent wel-fare standards on goods entering its territory than those prescribed by the directive.141

8. defences to indistinctly applicable rules: the mandatory requirements

(a) the rationale for the mandatory requirements

It is necessary in the present state of the law to consider separately defences to indistinctlyapplicable rules, although, as we shall see below, it is questionable whether there should be aseparate set of defences for discriminatory and non-discriminatory rules.

The rationale for the mandatory requirements is that many rules which regulate trade arealso capable of restricting trade, yet some serve objectively justifiable purposes. The ‘list’ of

defences to indistinctly applicable rules | 705

[1993] ECR I–6621; Case C–294/92 Commission v. Italy [1994] ECR I–4311; Case C–5/94 R. v. Ministry ofAgriculture, Fisheries and Food, ex p. Hedley Lomas (Ireland) Ltd. [1996] ECR I–2553; Case C–1/96 R. v. Ministerof Agriculture, Fisheries, and Food, ex p. Compassion in World Farming Ltd. [1998] ECR I–1251; Case C–443/02Nicolas Schreiber [2004] ECR I–7275; Case C–309/02 Radberger Getränkegesellschaft mbH and Co. and Spitz KGv. Land Baden-Württemberg [2004] ECR I–11763.

135 Case C–102/96 [1998] ECR I–6871.136 See, e.g., Case C–1/96 Compassion in World Farming Ltd., n. 134 above; Case C–443/02 Nicolas Schreiber,

n. 134 above; Case C–309/02 Radberger, n. 134 above.137 M. Dougan, ‘Minimum Harmonization and the Internal Market’ (2000) 37 CMLRev. 853, 855.138 Cases C–34–36/95 De Agostini, n. 67 above, paras. 32–35.139 Case C–324/99 DaimlerChrysler AG v. Land Baden-Württemberg [2001] ECR I–9897, para. 32; Case

C–309/02 Radberger, n. 134 above, para. 53.140 Case 4/75 Rewe-Zentralfinanz, n. 13 above; Case C–317/92 Commission v. Germany [1994] ECR I–2039;

Case C–17/93, Van der Veldt, n. 104 above.141 Compare Case C–1/96 Compassion in World Farming, n. 134 above, with Case C–389/98 Aher-Waggon,

n. 132 above; Dougan, n. 137 above, 868–884.


mandatory requirements in Cassis is sometimes referred to as the rule of reason, drawingupon the earlier hint in Dassonville that, in the absence of Community measures, reasonabletrade rules would be accepted in certain circumstances. A similar approach is evident in otherareas of Community law.142 Thus Advocate General VerLoren van Themaat143 regarded therule of reason as a general principle of interpretation designed to mitigate the effects of strictprohibitions laid down in the Treaty provisions on free movement.144 The burden of provingjustification rests on the State relying on the mandatory requirement.145

(b) the relationship between the mandatoryrequirements and article 30

The traditional view has been that the Cassis mandatory requirements are separate from thejustifications under Article 30. The ECJ held that the Cassis exceptions could be used only inrespect of rules that were not discriminatory.146 The Cassis list of mandatory requirementsincludes matters such as the protection of consumers and the fairness of commercial transac-tions which are not mentioned within Article 30 and the Cassis list is not exhaustive. The ECJ’swillingness to create a broader category of justifications for indistinctly applicable rules isexplicable because discriminatory rules strike at the very heart of the Community, and henceany possible justifications should be narrowly confined. The distinction between Article 30and the mandatory requirements in Cassis has however come under increasing strain in recentyears for three reasons.

First, there has, as we have seen, been discussion about whether the list in Article 30should be regarded as exhaustive.147 It has been argued that there might be instances where,for example, environmental considerations should be able to be pleaded even in cases ofdiscrimination.

Secondly, the distinction has also become less tenable because of the difficulty of distin-guishing between cases involving indirect discrimination and indistinctly applicable rules.The ECJ may well characterize a case as within the Cassis category because it wishes to allowthe State to avail itself of one of the mandatory requirements, even though, as in Aher-Waggon,148 the measure appeared to be discriminatory or distinctly applicable.

Thirdly, the reasoning in Keck has contributed to confusion in this respect. Selling arrange-ments are outside Article 28 so long as they apply to all traders in the national territory, and solong as they affect in the same manner, in law and fact, the marketing of domestic andimported products. Later cases have focused on the possible differential impact of nationalselling arrangements. If this is proven then Article 28 is applicable, subject to possible justifi-cations raised by the State. In some instances it will not matter whether the justification is con-sidered within the mandatory requirements or under Article 30, since it is covered by both, asin the case of public health.149 In other instances it will be of relevance, since the alleged


142 See Chs. 21, 22, and 24.143 Case 286 /81 Oosthoek, n. 67 above.144 See also the discussion of the rule of reason in competition law, Ch. 25.145 Case C–14/02 ATRAL, n. 36 above, paras. 67–68.146 Case 788/79 Gilli, n. 39 above, para. 6; Case 113/80 Commission v. Ireland [1981] ECR 1625, paras. 5–8.147 See above, 00–00.148 See Jacobs AG in Case C–379/98 PreussenElektra, n. 131 above, para. 227, commenting on Case C–389/98

Aher-Waggon, n. 132 above.149 See, e.g., Case C–189/95 Franzen, n. 76 above; Case C–405/98 Gourmet International, n. 83 above; Case

C–322/01 Deutscher Apothekerverband, n. 77 above.


justification falls only within the Cassis list. The ECJ has equivocated in some cases. Thus in deAgostini150 the ECJ held that the advertising ban might be justified to satisfy one of the manda-tory requirements or one of the aims listed in Article 30. Consumer protection and fair tradingare in the former list, but not the latter.

There is much to be said for simplification. It would be best for the same justifications to beavailable in principle, irrespective of whether the measure is discriminatory or indistinctlyapplicable. This should only be relevant to the application of the justification in the instantcase, in the sense that greater justification should be required for discriminatory measures.

It might be argued that this is not possible, given the wording of Article 30. This objectionis not convincing. There is no reason why phrases within Article 30, such as protection of thehealth and life of humans, could not be interpreted to include matters such as consumer pro-tection and the environment. The ECJ has construed other Treaty provisions in a far moreexpansive manner when it wished to do so. Moreover, if it was legitimate for the ECJ in Cassisto create an open-ended list of mandatory exceptions, not mentioned in the Treaty, then whywould it not be legitimate for the ECJ to read Article 30 to include matters such as the environ-ment or consumer protection?

(c) the mandatory requirements:consumer protection

Case 178/84 Commission v. Germany[1987] ECR 1227

German law prohibited the marketing of beer which was lawfully manufactured in anotherMember State unless it complied with sections 9 and 10 of the Biersteuergesetz (Beer DutyAct 1952). Under this law only drinks which complied with the German Act could be sold as‘Bier’, and this meant that the term could be used only in relation to those drinks which weremade from barley, hops, yeast, and water. The German Government argued that the reserva-tion of the term ‘Bier’ to beverages made only from these substances was necessary to pro-tect consumers who associated the term ‘Bier’ with beverages made from such ingredients. Italso argued that its legislation was not protectionist in aim, in that any trader who made beerfrom such ingredients could market it freely in Germany. The ECJ cited the principles fromDassonville and Cassis; it found that the German rule constituted an impediment to trade andthen considered whether the rule was necessary to protect consumers.

THE ECJ

31. The German Government’s argument that section 10 of the Biersteuergesetz is essen-tial in order to protect German consumers because, in their minds, the designation ‘Bier’ isinseparably linked to the beverage manufactured solely from the ingredients laid down insection 9 . . . must be rejected.

32. Firstly, consumers’ conceptions which vary from one Member State to the other arealso likely to evolve in the course of time within a Member State. The establishment of theCommon Market is, it should be added, one of the factors that may play a major contributory


150 Cases C–34–36/95 De Agostini, n. 67 above, 45–47.


role in that development. Whereas rules protecting consumers against misleading practicesenable such a development to be taken into account, legislation of the kind contained in sec-tion 10 . . . prevents it from taking place. As the Court has already held in another context (Case170/78, Commission v United Kingdom), the legislation of a Member State must not ‘crystal-lize given consumer habits so as to consolidate an advantage acquired by national industriesconcerned to comply with them’.

33. Secondly, in the other Member States of the Community the designations correspond-ing to the German designation ‘Bier’ are generic designations for a fermented beverage manu-factured from barley, whether malted barley on its own or with the addition of rice or maize.The same approach is taken in Community law as can be seen from heading 22.03 of theCommon Customs Tariff. The German legislature itself utilises the designation ‘Bier’ in thatway in section 9(7) and (8) of the Biersteuergesetz in order to refer to beverages not comply-ing with the manufacturing rules laid down in section 9(1) and (2).

34. The German designation ‘Bier’ and its equivalents in the languages of the otherMember States may therefore not be restricted to beers manufactured in accordance with therules in force in the Federal Republic of Germany.

35. It is admittedly legitimate to seek to enable consumers who attribute specific qualitiesto beers manufactured from particular raw materials to make their choice in the light of thatconsideration. However, as the Court has already emphasised (Case 193/80, Commission vItaly) that possibility may be ensured by means which do not prevent the importation of prod-ucts which have been lawfully manufactured and marketed in other Member States and, inparticular, ‘by the compulsory affixing of suitable labels giving the nature of the product sold’.By indicating the raw materials utilised in the manufacture of beer ‘such a course would enablethe consumer to make his choice in full knowledge of the facts and would guarantee trans-parency in trading and in offers to the public’. It must be added that such a system of manda-tory consumer information must not entail negative assessments for beers not complyingwith the requirements of section 9 of the Biersteuergesetz.

The ECJ therefore held the German law to be in breach of what is now Article 28. The way inwhich it dealt with the argument concerning consumer protection is instructive. Theargument was closely scrutinized to determine whether it really ‘worked’ on the facts of thecase. The ECJ then assessed whether the interests of consumers could be safeguarded by lessrestrictive means: paragraph 35. The same approach is apparent in other cases.151

The ECJ has often rejected justifications based on consumer protection by stating thatadequate labelling requirements can achieve the national objective with less impact on intra-Community trade. However, even labelling requirements may not escape Article 28. Thus inFietje152 the ECJ held that the obligation to use a certain name on a label could make it moredifficult to market goods coming from other Member States, and would therefore have to bejustified on the ground of consumer protection. Labelling requirements which demandedthat the purchaser was provided with sufficient information on the nature of the product inorder to prevent confusion with similar products, could, said the Court, be justified, even ifthe effect was to make it necessary to alter the labels of some imported goods.153 However,


151 See, e.g., Case 261/81 Rau, n. 40 above; Case 94/82 De Kikvorsch Groothandel-Import-Export BV [1983]ECR 947; Case C–293/93 Ludomira Neeltje v. Barbara Houtwipper [1994] ECR I–429; Case C–470/93 Vereingegen Unwesen in Handel und Gewerbe Köln eV v. Mars GmbH [1995] ECR I–1923; Case C–315/92 VerbandSozialer Wettbewerb eV v. Clinique Laboratoires SNC [1994] ECR I–317; Case C–14/00 Commission v. Italy[2003] ECR I–513.

152 Case 27/80 Fietje [1980] ECR 3839.153 Ibid., para. 11.


such protection would not be necessary or justifiable if the details given on the original labelsof the goods contained the same information as required by the State of import, and thatinformation was just as capable of being understood by consumers. Whether there was suchequivalence was for the national court to determine.154

(d) the mandatory requirements: fairness of commercial transactions

There is clearly an overlap between consumer protection and the fairness of commercialtransactions. This particular mandatory requirement has been used to justify national rulesthat seek to prevent unfair marketing practices, such as the selling of imported goods that areprecise imitations of familiar domestic goods. It seems, however, that in order to be justifiedon this ground the national rule must not prohibit the marketing of goods which have beenmade according to fair and traditional practices in State A merely because they are similar togoods which have been made in State B.155

(e) the mandatory requirements:public health

We have already noted that the traditional view was that only indistinctly applicable rulescould take advantage of the mandatory requirements. However, the ECJ has, on occasion, notbeen too concerned about whether it considers a justification within Article 30, or within thelist of mandatory requirements, provided that the justification pleaded by the State comeswithin both lists, more especially where it is unclear whether the impugned rule is discrim-inatory or indistinctly applicable. Public health finds a place both in the list of Cassis manda-tory requirements and in Article 30. The following extract from the German Beer caseprovides an apt example of this:156

Case 178/84 Commission v. Germany[1987] ECR 1227


A second rule of German law was challenged in the German Beer case. Under theGerman Foodstuffs Act 1974 there was an absolute ban on the marketing of beer which con-tained additives. In essence this Act prohibited non-natural additives on public-health grounds.The Commission challenged this rule. It was accepted that the German rule constituted a bar-rier to the import of beer lawfully marketed in other States which contained additives. Thequestion before the ECJ was whether the rule could come within Article 36 on public-healthgrounds.


154 Ibid., para. 12. See also Case 76/86 Commission v. Germany [1989] ECR 1021.155 Case 58/80 Dansk Supermarked v. Imerco [1981] ECR 181; Case 16/83 Karl Prantl [1984] ECR 1299.156 See also Case 53/80 Officier van Justitie v. Koniklijke Kaasfabriek Eyssen BV [1981] ECR 409; Case 97/83

Criminal Proceedings against Melkunie BV [1984] ECR 2367.


THE ECJ

41. The Court has consistently held (in particular in Case 174/82, Criminal ProceedingsAgainst Sandoz BV) that ‘in so far as there are uncertainties at the present state of scientificresearch it is for the Member States, in the absence of harmonization, to decide what degreeof protection of the health and life of humans they intend to assure, having regard to therequirements of the free movement of goods within the Community.

42. As may also be seen from the decision of the Court (and especially the Sandoz case,cited above, in Case 247/84, Motte, and in Case 308/84, Ministère Public v Muller), in suchcircumstances Community law does not preclude the adoption by Member States of legisla-tion whereby the use of additives is subjected to prior authorisation granted by a measure ofgeneral application for specific additives, in respect of all products, for certain products only orfor certain uses. Such legislation meets a genuine need of health policy, namely that of restrict-ing the uncontrolled consumption of food additives.

43. However, the application to imported products of prohibitions on marketing productscontaining additives which are authorised in the Member State of production but prohibited inthe Member State of importation is permissible only in so far as it complies with the require-ments of Article 36 of the Treaty as it has been interpreted by the Court.

44. It must be borne in mind, in the first place, that in its judgments in Sandoz, Motte andMuller, the Court inferred from the principle of proportionality underlying the last sentence ofArticle 36 of the Treaty that prohibitions on the marketing of products containing additivesauthorised in the Member State of production but prohibited in the Member State of import-ation must be restricted to what is actually necessary to secure the protection of public health.The Court also concluded that the use of a specific additive which is authorised in anotherMember State must be authorised in the case of a product imported from that Member Statewhere, in view, on the one hand, of the findings of international scientific research, and in par-ticular the work of the Community’s Scientific Committee for Food, the Codex AlimentariusCommittee of the Food and Agriculture Organisation of the United Nations (FAO) and the WorldHealth Organisation, and, on the other, of the eating habits prevailing in the importing MemberState, the additive in question does not present a risk to public health and meets a real need,especially a technical one.

45. Secondly, it should be remembered that, as the Court held in Muller, by virtue of theprinciple of proportionality, traders must also be able to apply, under a procedure which iseasily accessible to them and can be concluded within a reasonable time, for the use of spe-cific additives to be authorised by a measure of general application.[The Court then pointed out that the German rule prohibited all additives; that there was no pro-cedure whereby traders could obtain authorization for a specific additive; and that additiveswere permitted by German law in beverages other than beer. The German Government arguedthat such additives would not be needed in the manufacture of beer if it were made inaccordance with section 9 of the Biersteuergesetz. The ECJ responded as follows:]

51. It must be emphasised that the mere reference to the fact that beer can be manufac-tured without additives if it is made from only the raw materials prescribed in the FederalRepublic of Germany does not suffice to preclude the possibility that some additives maymeet a technological need. Such an interpretation of the concept of technological need, whichresults in favouring national production methods, constitutes a disguised means of restrictingtrade between Member States.

52. The concept of technological need must be assessed in the light of the raw materialsutilised and bearing in mind the assessment made by the authorities of the Member Stateswhere the product was lawfully manufactured and marketed. Account must also be taken ofthe findings of international scientific research and in particular the work of the Community’s



Scientific Committee for Food, the Codex Alimentarius Committee of the FAO and the WorldHealth Organisation.

53. Consequently, in so far as the German rules on additives in beer entail a general ban onadditives, their application to beers imported from other Member States is contrary to therequirements of Community law as laid down in the case law of the Court, since that prohib-ition is contrary to the principle of proportionality and is therefore not covered by Article 36 ofthe EEC Treaty.

(f) other mandatory requirementsThe list of mandatory requirements in Cassis is not exhaustive, as evident from the fact thatthe ECJ stated that the mandatory requirements included in particular those mentioned in thejudgment.157 This has been confirmed by later cases. It can, in the absence of Communityharmonization measures, include the protection of the environment.158

Case 302/86 Commission v. Denmark[1988] ECR 4607


Danish law required that containers for beer and soft drinks should be returnable and that a cer-tain proportion should be re-usable. A national environmental agency had to approve contain-ers to ensure compliance with these criteria. There was also a deposit-and-return system forempty containers. The Danish Government argued that the rule was justified by a mandatoryrequirement related to the protection of the environment.

THE ECJ

8. The Court has already held in . . . Case 240/83, Procureur de la République v Associationde Défense des Brûleurs d’Huiles Usagées . . . that the protection of the environment is ‘oneof the Community’s essential objectives’, which may as such justify certain limitations ofthe principle of free movement of goods. That view is moreover confirmed by the SingleEuropean Act.

9. In view of the foregoing, it must therefore be stated that the protection of the environ-ment is a mandatory requirement which may limit the application of Article 30 of the Treaty.[The Commission argued that the Danish laws were disproportionate.]

13. First of all, as regards the obligation to establish a deposit-and-return system for emptycontainers, it must be observed that this requirement is an indispensable element of a systemintended to ensure the re-use of containers and therefore appears necessary to achieve theaims pursued by the contested rules. That being so, the restrictions which it imposes on thefree movement of goods cannot be regarded as disproportionate.

14. Next it is necessary to consider the requirement that producers and importers must useonly containers approved by the National Agency for the Protection of the Environment.


157 [1979] ECR 649, para. 8.158 See also Case C–379/98 PreussenElektra, n. 148 above; Case C–309/02 Radberger Getränkegesellschaft

mbH and Co. and Spitz KG v. Land Baden-Württemberg [2004] ECR I–11763, para. 75.


[The Danish Government argued that the number of approved containers had to be limitedbecause otherwise retailers would not take part in the system. This meant that a foreign pro-ducer might have to manufacture a type of container already approved, with consequentincreases in costs. To overcome this problem the Danish law was amended to allow a producerto market up to 3,000 hectolitres a year in non-approved containers, provided that a deposit-and-return system was established. The Commission argued that the limit of 3,000 hectolitreswas unnecessary to achieve the objectives of the scheme.]

20. It is undoubtedly true that the existing system for returning approved containersensures a maximum rate of re-use and therefore a very considerable degree of protection ofthe environment since empty containers can be returned to any retailer of beverages.Non-approved containers, on the other hand, can be returned only to the retailer who sold thebeverages, since it is impossible to set up such a comprehensive system for those containersas well.

21. Nevertheless, the system for returning non-approved containers is capable of protectingthe environment and, as far as imports are concerned, affects only limited quantities of bever-ages compared with the quantity of beverages consumed in Denmark owing to the restrictiveeffect which the requirement that containers should be returnable has on imports. In thosecircumstances, a restriction of the quantity of products which may be marketed by importersis disproportionate to the objective pursued.

22. It must therefore be held that by restricting . . . the quantity of beer and soft drinks whichmay be marketed by a single producer in non-approved containers to 3,000 hectolitres a year,the Kingdom of Denmark has failed, as regards imports of those products from other MemberStates, to fulfil its obligations under Article 30 of the EEC Treaty.

Environmental protection is not the only new addition to this catalogue. In Familiapress159

the ECJ recognized pluralism of the press as a value that could legitimate a national measurethat was in breach of Article 28. The offering of prizes for games in magazines could drive outsmaller papers, which could not afford to make such offers. In Cinéthèque160 the ECJ was will-ing to recognize that the fostering of certain forms of art could constitute a justifiable object-ive within the context of Community law. While in Torfaen161 it accepted that rules governingthe opening hours of premises pursued a justifiable aim, in that such rules reflected certainsocial and political choices which might differ between Member States.162 It is clear moreoverfrom Schmidberger that protection of fundamental rights can be relevant as justification of anindistinctly applicable measure.

Case C–112/00 Eugen Schmidberger, Internationale Transporte und Planzuge v. Austria

[2003] ECR I–5659

The ECJ held that a decision by Austria not to ban a demonstration by an environmental groupthat led to closure of the Brenner motorway was caught by Article 28 in so far as it impeded


159 Case C–368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Heinrich Bauer Verlag[1997] ECR I–368.

160 Cases 60 and 61/84 [1985] ECR 2605.161 Case 145/88 [1989] ECR 3851.162 While Cinéthèque and Torfaen would probably now fall outside Art. 28, the recognition of these grounds

of objective justification could be of relevance in cases that do fall within Art. 28 even after Keck.


trade for the relevant period. The ECJ then considered whether the restriction was justified,more especially because the Austrian Government in allowing the demonstration was influ-enced by considerations relating to freedom of expression and assembly as enshrined in theECHR and the Austrian Constitution. The ECJ accepted that fundamental rights were part ofthe Community legal order, but that these rights and the principles concerning free movementof goods were not absolute.

THE ECJ

81. In those circumstances, the interests involved must be weighed having regard to all thecircumstances of the case in order to determine whether a fair balance was struck betweenthose interests.

82. The competent authorities enjoy a wide margin of discretion in that regard.Nevertheless, it is necessary to determine whether the restrictions placed upon intra-Community trade are proportionate in the light of the legitimate objectives pursued, namely . . .the protection of fundamental rights.[The ECJ emphasized that the demonstrators had sought permission from the AustrianGovernment, and that the demonstration was limited in scope and time.]

86. [I]t is not in dispute that by the demonstration, citizens were exercising their funda-mental rights by manifesting in public an opinion which they considered to be of importance insociety; it is also not in dispute that the purpose of that public demonstration was not torestrict trade in goods of a particular type or from a particular source. . . .

87. [I]n the present case various administrative and supporting arrangements were taken bythe competent authorities in order to limit as far as possible the disruption to road traffic. . . .

88. Moreover, it is not in dispute that the isolated incident in question did not give rise to ageneral climate of insecurity such as to have a dissuasive effect on intra-Community tradeflows as a whole . . .

89. Finally . . . the competent national authorities were entitled to consider that an outrightban on the demonstration would have constituted unacceptable interference with the funda-mental rights of the demonstrators to gather and express peacefully their opinion in public.[The ECJ accepted that alternative solutions would have been liable to lead to more seriousdisruption of trade, such as unauthorized demonstrations.]

93. [T]he national authorities were reasonably entitled, having regard to the wide discretionwhich must be accorded to them in the matter, to consider that the legitimate aim of thatdemonstration could not be achieved in the present case by measures less restrictive of intra-Community trade.

(g) mandatory requirements and harmonization

A Community harmonization measure may render it impossible for a State to rely on amandatory requirement.163 Whether it has this effect will depend upon whether theCommunity measure is directed at total or only a minimum harmonization. The previousdiscussion of this issue is applicable here.164


163 See, e.g., Case C–383/97 Criminal Proceedings against Van der Laan [1999] ECR I–731.164 See above, 00.


(h) summaryi. The ECJ was creative in Cassis when it set out the mandatory requirements, and it has

shown similar flexibility since then, by adding new defences to the list. The Court has, notsurprisingly, interpreted the requirements strictly, obliging Member States to satisfy itthat a defence is really warranted in the circumstances. There are however two causes forconcern.

ii. First, the dividing line between the mandatory requirements and Article 30 is problem-atic. It has been argued that the same public interest defences should be available irre-spective of whether the measure is discriminatory or not. Whether the measure wasdiscriminatory or not would simply be of relevance in the application of the defences tothe facts of the particular case.

iii. Secondly, the decision on whether the mandatory requirements provide a defence for theMember State can involve difficult balancing exercises for the ECJ, and for the nationalcourts, to which many such issues are delegated by the ECJ. This issue will be examinedmore fully in the following section.

9. free movement of goods and cassis:the broader perspective

(a) the commission response to cassisThe Court’s judgment in Cassis was, in part, a response to the difficulties faced by theCommission in securing acceptance by the Member States of harmonization measures. Thejudgment in Cassis rendered indistinctly applicable rules which impeded trade incompatiblewith Article 28, unless they could be saved by a mandatory requirement. This was so even inthe absence of relevant harmonization provisions. Cassis therefore fostered single-marketintegration, and obviated the need for many Community harmonization provisions.

It was argued at the beginning of this Chapter that the ECJ’s jurisprudence could not beviewed in isolation. It had an impact upon how the other Community institutions perceivedtheir role. The Commission was not slow to respond to the Court’s initiative. It published aCommunication setting out its interpretation of the Cassis decision, which also providedinsights into how the Commission perceived its legislative role in this area.

Commission Communication, 3 October 1980[1980] OJ C256/2

Whereas Member States may, with respect to domestic products and in the absence of rele-vant Community provisions, regulate the terms on which such products are marketed, thecase is different for products imported from other Member States.

Any product imported from another Member State must in principle be admitted to the ter-ritory of the importing Member State if it has been lawfully produced, that is, conforms to rulesand processes of manufacture that are customarily and traditionally accepted in the exportingcountry, and marketed in the territory of the latter.

. . .



Only under very strict conditions does the Court accept exceptions to this principle; barriersto trade resulting from differences between commercial and technical rules are only admissible:

— if the rules are necessary, that is appropriate and not excessive, in order to satisfy manda-tory requirements . . .;

— if the rules serve a purpose in the general interest which is compelling enough to justifyan exception to a fundamental rule of the Treaty such as the free movement of goods;

— if the rules are essential for such a purpose to be attained, ie. are the means which are themost appropriate and at the same time least hinder trade.

[The Commission then set out a number of guidelines in the light of the Court’s judgment.]

— The principles deduced by the Court imply that a Member State may not in principle pro-hibit the sale in its territory of a product lawfully produced and marketed in anotherMember State even if the product is produced according to technical or quality require-ments which differ from those imposed on its domestic products. Where a product ‘suit-ably and satisfactorily’ fulfils the legitimate objective of a Member State’s own rules(public safety, protection of the consumer or the environment, etc.), the importing coun-try cannot justify prohibiting its sale in its territory by claiming that the way it fulfils theobjective is different from that imposed on domestic products.

In such a case, an absolute prohibition of sale could not be considered ‘necessary’ to satisfya ‘mandatory requirement’ because it would not be an ‘essential guarantee’ in the sensedefined in the Court’s judgment.

The Commission will therefore have to tackle a whole body of commercial rules which laydown that products manufactured and marketed in one Member State must fulfill technical orqualitative conditions in order to be admitted to the market of another and specifically in allcases where the trade barriers occasioned by such rules are inadmissible according to the verystrict criteria set out by the Court.

The Commission is referring in particular to rules covering the composition, designation, pres-entation and packaging as well as rules requiring compliance with certain technical standards.

—The Commission’s work of harmonization will henceforth have to be directed mainly atnational laws having an impact on the functioning of the common market where barriersto trade to be removed arise from national provisions which are admissible under the cri-teria set out by the Court.

The Commission will be concentrating on sectors deserving priority because of their eco-nomic relevance to the creation of a single internal market.

There are two important themes in the Commission’s Communication. The first is what hasbecome known as the principle of mutual recognition. Goods lawfully marketed in oneMember State should, in principle, be admitted to the market of any other State. This leads tocompetition among rules, or regulatory competition. A producer will normally only have tocomply with the national rules of one State in order that its goods can move freely in the EC.Firms are then able to choose between different national regulations. Consumers can choosebetween the products that comply with those rules. This creates a ‘competitive process amongthe different national rules: the choice of producers of where to produce and of consumers ofwhat to buy will determine the “best rules’’ ’.165

The second theme concerns the Commission’s enforcement and legislative strategy fortrade rules post-Cassis. This was to be double-edged. It would tackle trade rules that were

free movement and cassis: broader view | 715

165 Maduro, n. 2 above, 132.


inadmissible in the light of Cassis by using its powers under Article 226 against recalcitrantMember States. The harmonization process would be directed towards those trade ruleswhich were admissible under the Cassis test. The effect of Cassis was thus to induce theCommission to re-orient its legislative programme, and concentrate on national rules thatwere still valid under the Court’s case law.

This strategy was reinforced by a decision166 establishing a procedure for the exchange ofinformation about national measures that derogate from the free movement of goods. AMember State which seeks to prevent free movement of goods that have been lawfully pro-duced or marketed in another Member State must notify the Commission. This informationwill enable the Commission to decide whether this should be the subject of an Article 226action, or whether harmonization measures will be necessary to obviate the concerns of theState that is impeding free movement. The ECJ has taken a broad view of ‘national measures’that trigger the obligation to notify.167

This Decision should be viewed in tandem with Directive 98/34168 on the provision ofinformation on technical standards and regulations. This measure, known as the MutualInformation or Transparency Directive, imposes an obligation on a State to inform theCommission before it adopts any legally binding regulation setting a technical specification.The Commission notifies the other States, and may require that the adoption of the nationalmeasure be delayed by up to six months, in order that possible amendments can be consid-ered. A further delay can result if the Commission decides to push ahead with a harmoniza-tion directive on the issue.

(b) problems with realizing the cassis strategy

Mutual recognition is the core of the ECJ’s and Commission’s strategy.169 The general assump-tion is that this works just fine. Matters are not so simple. The Commission’s paper on MutualRecognition170 emphasized that it did not always operate effectively, and made a number ofproposals to improve it.171 There is to be increased monitoring of mutual recognition by theCommission, to be complemented by measures designed to improve awareness of mutualrecognition by producers of goods and services. Member States should deal with requests con-cerning mutual recognition within a reasonable time, and should include mutual recognitionclauses in national legislation.

We see here once again the inter-relationship of judicial and legislative strategies. Theobligation to insert such clauses derives from the Foie Gras case.172 The French imposedrequirements on the composition of foie gras. The Commission argued that the French decree


166 Dec. 3052/95/EC of the European Parliament and of the Council of 13 Dec. 1995 establishing a pro-cedure for the exchange of information on national measures derogating from the principle of free movementof goods within the Community [1995] OJ L321/1.

167 Cases C–388 and 429/00 Radiosistemi Srl v. Prefetto di Genova [2002] ECR I–5845, para. 73; CaseC–432/03 Commission v. Portugal, n. 124 above, paras. 56–60.

168 Dir. 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedurefor the provision of information in the field of technical standards and regulations [1998] OJ L204/37; CaseC–194/94 CIA Security International SA v. Signalson SA and Securitel Sprl [1996] ECR I–2201; Barnard, n. 97above, 119–127.

169 K. Armstrong, ‘Mutual Recognition’, in Barnard and Scott (eds.), n. 24 above, ch. 9.170 Commission Communication to the European Parliament and the Council, Mutual Recognition in the

Context of the Follow-up to the Action Plan for the Single Market, 16 June 1999.171 Ibid., 7–12.172 Case C–184/96 Commission v. France [1998] ECR I–6197.


containing the requirements for foie gras must also contain a mutual recognition clause in thelegislation itself,permitting preparations for foie gras which had been lawfully marketed in anotherMember State to be marketed in France. The ECJ agreed.173 Henceforth any State which imposesrequirements as to product characteristics and the like must also include a mutual-recognitionclause in the enabling legal instrument. The Commission acknowledged their importance: ‘it isthrough such clauses that not only individuals,but also the competent national authorities and theheads of inspection and control bodies become aware of how mutual recognition has to be appliedin a given area’.174 Such clauses are especially important, given the difficulties that persist withmutual recognition of complex technical products, foodstuffs, and the like.175

(c) problems flowing from the cassis strategyThe effect of Cassis was that Community policy would be developed through a mixture ofadjudication and rule-making. Adjudication by the ECJ pursuant to Cassis resulted in negativeintegration: trade rules would be incompatible with Article 28 unless they could be saved by amandatory requirement. Rule-making would be used for national rules that survived becauseof the mandatory requirements, and therefore still posed a problem for market integration.This resulted in positive integration, in the sense that there would be Community rules whichwould bind all States. There are, however, four problems with this general strategy.

The first problem is that it is dependent upon agreement with the outcome of the adjudica-tive process. If the challenged rule failed the Cassis test then it would have to be removed fromnational law. This conclusion was fine, provided that one agreed with it. The result was lesssatisfactory if one felt that the trade rule should have been saved by a mandatory requirement.Thus the ECJ has, for example, generally held that national rules on food standards are notsaved by the mandatory requirements, because the policy of the importing State can be met byless restrictive rules on product labelling.176 Weatherill has argued forcefully that the ECJ oftentakes a robust view of consumers, and has given relatively little attention to the prospects ofconsumer confusion.177 Lasa has also argued that labelling requirements, as opposed to foodstandards, may not adequately protect the consumer.

H.-C. von Heydebrand u. d. Lasa, Free Movement of Foodstuffs, Consumer Protection and Food Standards in the European Community:

Has the Court of Justice Got it Wrong?178

First of all, the Court might simply not be right that consumers are adequately informedthrough labels. After all, the majority of the consumers apparently do not pay much attentionto the information given on the label. . . .


173 Ibid., para. 28.174 Mutual Recognition Communication, n. 170 above, 11. See also Council Resolution of 28 Oct. 1999 on

Mutual Recognition [2000] OJ C141/5.175 Report from the Commission to the Council, European Parliament, and ECOSOC, Second Biannual

Report on the Application of the Principle of Mutual Recognition in the Single Market, COM(2002)419 final.176 See above 000–00.177 S. Weatherill, ‘Recent Case Law Concerning the Free Movement of Goods: Mapping the Frontiers of

Market Deregulation’ (1999) 36 CMLRev. 51.178 (1991) 16 ELRev. 391, 409–413. See also O. Brouwers, ‘Free Movement of Foodstuffs and Quality

Requirements: Has the Commission Got it Wrong?’ (1988) 25 CMLRev. 237.


Secondly, the Court’s approach can confer an unfair competitive advantage on the importer. . . The consumer associates with the name or presentation of the product a familiar domesticproduct of a certain quality which is not met by the imported product, and will thereforeperhaps be misled. . . .

Fourthly, the Court’s case law, if implemented strictly in the long run, may well result in a‘labelling jungle’ which even judges would find difficult to penetrate. . . .

Fifthly, while administrative resources are saved by foregoing harmonization, authorities ofthe Member States have to struggle with the food standards of the various Member States,since the imported product must still be ‘lawfully produced and marketed’ in the MemberStates of export. Mutual recognition of official inspections has its difficulties too, especiallywhere the product designated for export is not at all or less carefully examined than the prod-uct which is sold on the home market.

Sixthly, depending on the market of the foodstuff in question, mutual recognition can lead todiscrimination against manufacturers situated in the importing Member State, if that MemberState does not timely adjust the food standard. . . .

More important . . . the Member State of export can by way of the economic damage causedby inverse discrimination impose de facto its food standard or standard free food law on theMember State of import. Relocation of production to the exporting Member State in an effortto secure market share at home has already occurred in practice. . . .

Seventhly, the preference of the Court for labelling is not sufficiently responsive to the localneeds of the people of the importing Member State to define and classify the food they eataccording to their conceptions, expectations and habits. . . .

. . . The attitude of the Court of Justice towards food standards makes it de facto impossiblefor the people of a Member State to enforce requirements about the quality, composition,designation and presentation of their food when their views are not shared by the people in theMember State of export. . . .

The second problem relates to the balancing exercise performed pursuant to Article 30 andthe mandatory requirements. The ECJ has to adjudicate on the balance between market inte-gration and the attainment of other societal goals, when deciding on the legitimacy of suchdefences. This can also be problematic for national courts, as is readily apparent from theSunday Trading cases and more recent jurisprudence. Thus in de Agostini179 the national courthad to decide whether the advertising ban affected imported goods differentially from domes-tic goods, whether the ban might satisfy a mandatory requirement, and whether it was pro-portionate. In Familiapress180 the task given to the national court was even more problematic.The ban on the import of newspapers offering prizes was held to breach Article 28. It was forthe national court to decide whether the ban could be saved on the ground that it was aproportionate method of preserving press diversity, and whether that objective could beachieved by less restrictive means. The national court was, moreover, required to decide on thedegree of competition between papers offering prizes and those small newspapers that couldnot afford to do so, and to estimate the extent to which sales of the latter would decline if theformer could be offered for sale.

The third problem concerns the balance between market integration and the protectivefunction played by national rules. Community legislative initiatives may be required to ensurethat the protective function of certain trade rules is not lost sight of in the desire to enhance


179 Cases C–34–36/95 de Agostini, n. 67 above.180 Case C–368/95 Vereinigte Familiapress, n. 159 above.


single-market integration.181 Thus consumer groups were worried that trade liberalizationcould have negative consequences on consumer safety.182 It is true that safety and the like canbe taken into account under the Cassis mandatory requirements. There is, however, asWeatherill and Beaumont note, a risk inherent in the Cassis line of authority. The risk is ‘thatthe Court has introduced a legal test that tends to tip the balance away from legitimate socialprotection towards a deregulated (perhaps unregulated) free market economy in whichstandards of, inter alia, consumer protection will be depressed’.183 Positive harmonizationthrough Community rules may be required to ensure the appropriate level of protection inthe relevant area.

The final problem concerns the allocation of regulatory competence between theCommunity and the Member States. The interpretation of Article 28 serves to define thesphere of regulatory competence left to the Member States, and the extent to whichCommunity harmonization is required. This entails important choices.

M. Maduro, We the Court: the European Court of Justice and the European Economic Constitution184

[Art. 30 should be read as Art. 28]

The institutional choices, regarding the allocation of regulatory powers, that can be detected indifferent interpretations of Article 30 [28] and its co-ordination with Treaty rules on harmonisa-tion may be represented in three ideal constitutional models of the European EconomicConstitution: the centralised constitutional model, the competitive constitutional model andthe decentralised constitutional model. The centralised model reacts to the erosion of nationalregulatory powers through Article 30 by favouring a process of market integration by means ofthe replacement of national laws with Community legislation. The competitive model pro-motes ‘competition among national rules’, notably through the principle of mutual recognitionof national legislation. In the decentralised model, States will retain regulatory powers, butare, at the same time, prevented from developing protectionist policies. These models areheuristic devices. They are all present—and compete with each other—in the EuropeanUnion. . . . These, in turn, can be linked with three different visions of the European EconomicConstitution and its legitimation.

The first argues that negative integration, deriving from the application of market integrationrules, must be followed by positive integration which is legitimised through the developmentof traditional democratic mechanisms in the European Union.

The second argues for the constitutionalisation of negative integration. No traditional demo-cratic developments are required for the European Union institutions since powers are left tothe market. . . . This vision protects market freedom and individual rights against public power.

The third vision still sees the highest source of legitimacy in national democratic legitimacy.The legitimacy of the European Economic Constitution derives therefrom and is thusconditioned. . . .


181 See, however, Case C–320/93 Lucien Ortscheit GmbH v. Eurim-Pharm Arzneimittel GmbH [1994] ECRI–5243, for judicial recognition of this problem.

182 K.J. Alter and S. Meunier-Aitsahalia, ‘Judicial Politics in the European Community: EuropeanIntegration and the Pathbreaking Cassis de Dijon Decision’ (1994) 26 Comparative Political Studies 535, 544.

183 N. 47 above, 600.184 (Hart, 1998), 108–109.


The disputes over Article 30 and European regulation are basically disputes over these dif-ferent economic constitutional models and the different legitimacy they presuppose.

10. conclusion

i. The ECJ had certain fundamental choices open to it when interpreting Article 28. It couldhave limited the remit of this Article to measures that were discriminatory or protection-ist. It chose not to do so, and extended Article 28 to cover indistinctly applicable rules.Consequences flow from any choice, and this applies as much to those made by courts asother decision-makers.

ii. The legislative consequence of Cassis was far-reaching. The decision facilitated the cre-ation of a single market. The Commission re-oriented its legislative strategy to concen-trate on trade rules that were still lawful in the light of Cassis and could be justified by themandatory requirements. There would be harmonization pursuant to Article 95, albeitoften only minimum harmonization.

iii. The judicial consequence of Cassis was equally significant. The ECJ ‘reaped the burden ofits own success’. Litigants sought to challenge all manner of national trade rules claimingthat they constituted an impediment, direct or indirect, actual or potential, toCommunity trade. It was this that led the ECJ to re-think its own jurisprudence in Keck inan attempt to stem the tide. The distinction between rules going to the characteristics ofthe goods and those pertaining to selling arrangements has proven fragile. The ECJ hasincreasingly brought selling arrangements within Article 28 either by treating them asgoing to the character of the goods, or because they apply unevenly, in fact or law, toimports. Market access has come closer to centre stage in the ECJ’s reasoning.

iv. Cassis also had a second-order judicial consequence. The ECJ had to decide whether aMember State could legitimately plead a mandatory requirement as a defence. It wasforced to make difficult decisions between the imperatives of market integration and thepursuit of other social goals. National courts are often faced with complex empirical andnormative issues, having to decide whether a mandatory requirement is proportionate,whether another less restrictive measure would be possible and balance matters such aspress diversity against market integration.

v. Cassis had significant regulatory consequences. Member States lost regulatory competence.They could no longer apply their trade rules to imported goods. These had to be admittedbecause of mutual recognition, unless they could be saved by a mandatory requirement. TheEC acquired regulatory competence, since the existence of a proven mandatory requirementbrought Article 95 into play. Difficult choices had to be made about the balance between theimperatives of market integration, and the pursuit of other social objectives.

11. further reading

(a) Books

Barnard, C., The Substantive Law of the EU: The Four Freedoms (Oxford University Press,2004)



—— and Scott, J. (eds.), The Law of the Single European Market, Unpacking the Premises (Hart,2002)

Jarvis, M., The Application of EC Law by National Courts: The Free Movement of Goods (OxfordUniversity Press, 1998)

Maduro, M.P., We the Court: The European Court of Justice and the European EconomicConstitution (Hart, 1998)

Nic Shuibhne, N., Regulating the Internal Market (Edward Elgar, 2006)

Oliver, P., assisted by Jarvis, M., Free Movement of Goods in the European Community: UnderArticles 28 to 30 of the EC Treaty (4th edn., Sweet & Maxwell, 2003)

Woods, L., Free Movement of Goods and Services within the European Community(Ashgate, 2004)

(b) Articles

Armstrong, K., ‘Mutual Recognition’, in C. Barnard and J. Scott (eds.), The Law of the SingleEuropean Market, Unpacking the Premises (Hart, 2002), ch. 9

Barnard, C., ‘Fitting the Remaining Pieces into the Goods and Persons Jigsaw’ (2001)26 ELRev. 35

—— and Deakin, S., ‘Market Access and Regulatory Competition’, in C. Barnard and J. Scott(eds.), The Law of the Single European Market, Unpacking the Premises (Hart, 2002), ch. 8

Bernard, N., ‘Discrimination and Free Movement in EC Law’ [1996] ICLQ 82

Biondi, A., ‘Free Trade, a Mountain Road and the Right to Protest: European EconomicFreedoms and Fundamental Individual Rights’ [2004] EHRLRev. 51

Chalmers, D., ‘Repackaging the Internal Market—The Ramifications of the Keck Judgment’(1994) 19 ELRev. 385

Connor, T., ‘Accentuating the Positive: the “Selling Arrangement”, the First Decade andBeyond’ (2005) 54 ICLQ 127

De Búrca, G., ‘Unpacking the Concept of Discrimination in EC and International Trade Law’,in C. Barnard and J. Scott (eds.), The Law of the Single European Market, Unpacking thePremises (Hart, 2002), ch. 7

Doogan, M., ‘Minimum Harmonization and the Internal Market’ (2000) 37 CMLRev. 853

Enchelmaier, S., ‘The Awkward Selling of a Good Idea, or a Traditionalist Interpretation ofKeck’ (2003) 22 YBEL 249

Gormley, L.W., ‘Reasoning Renounced? The Remarkable Judgment in Keck & Mithouard’[1994] European Business L Rev. 63

Greaves, R., ‘Advertising Restrictions and the Free Movement of Goods and Services’ (1998)23 ELRev. 305

Hilson, C., ‘Discrimination in Community Free Movement Law’ (1999) 24 ELRev. 445

Koutrakos, P., ‘On Groceries, Alcohol and Olive Oil: More on Free Movement of Goods afterKeck’ (2001) 26 ELRev. 391

Maduro, M.P., ‘Reforming the Market or the State? Article 30 and the European Constitution:Economic Freedoms and Political Rights’ (1997) 3 ELJ 55

Mortelmans, K., ‘The Common Market, the Internal Market and the Single Market, What’s ina Market’ (1998) 35 CMLRev. 101

further reading | 721


Nic Shuibhne, N., ‘The Free Movement of Goods and Article 28: An Evolving Framework’(2002) 27 ELRev. 408

Oliver, P., ‘Some Further Reflections on the Scope of Articles 28–30 (ex 30–36)’ (1999) 36CMLRev. 738

—— and Roth, W.-H., ‘The Internal Market and the Four Freedoms’ (2004) 41 CMLRev. 407

Reich, N.,‘The “November Revolution”of the European Court of Justice: Keck, Meng and AudiRevisited’ (1994) 31 CMLRev. 459

Scott, J., ‘Mandatory or Imperative Requirements in the EU and the WTO’, in C. Barnard andJ. Scott (eds.), The Law of the Single European Market, Unpacking the Premises (Hart, 2002),ch. 10

Weatherill, S., ‘After Keck: Some Thoughts on how to Clarify the Clarification’ (1996) 33CMLRev. 885

—— ‘Recent Case Law Concerning the Free Movement of Goods: Mapping the Frontiers ofMarket Deregulation’ (1999) 36 CMLRev. 51

—— ‘Pre-emption, Harmonisation and the Distribution of Competence to Regulate theInternal Market’, in C. Barnard and J. Scott (eds.), The Law of the Single European Market,Unpacking the Premises (Hart, 2002), ch. 2

Weiler, J.H.H, ‘From Dassonville to Keck and Beyond: An Evolutionary Reflection on the Textand Context of the Free Movement of Goods’, in P. Craig and G. de Búrca (eds.), TheEvolution of EU Law (Oxford University Press, 1999), ch. 10

White, E., ‘In Search of the Limits to Article 30 of the EEC Treaty’ (1989) 26 CMLRev. 235

Wils, W.P.J., ‘The Search for the Rule in Article 30 EEC: Much Ado About Nothing?’ (1993) 18ELRev. 475



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