Prohibition of measures having equivalent effect | 500 Questions

242. What is the scope of the prohibition?

The principle of free movement of goods is an essential element of European integration, as its objective, according to Article 3 TEU, is the establishment of an internal market. This involves not only eliminating direct obstacles to trade, such as …

243. What is meant by European goods?

Article 28 TFEU specifies that the Union is based on a customs union “which shall cover all trade in goods.” The concept of goods is broadly understood by the European authorities. It covers all categories of goods or merchandise imported or …

244. Does the prohibition concern only national rules?

In principle, only state measures are targeted by the prohibition of unilateral measures that are restrictive or have an equivalent effect, excluding acts or behaviors attributable to private individuals or professional groups, unless the …

245. Does the prohibition concern purely internal situations?

National legislation concerning the free movement of goods within the national territory does not fall under the prohibition of Articles 34 and 35 TFEU as long as it has no connection with the import or export of products and is therefore not …

246. What is reverse discrimination?

Reverse discrimination consists of placing domestic products in a less favorable situation than those coming from other Member States. It is accepted in the matter of free movement of goods since Article 34 is not intended to ensure that goods of …

247. Does the principle of mutual recognition require accepting goods manufactured in another Member State in all cases?

The principle of free movement of goods requires each Member State to accept products that are legally manufactured and/or marketed in other Member States and that are not subject to a European harmonization measure, even if the technical or …

248. Are all restrictions, regardless of their severity, prohibited?

Any hindrance, even of minor importance, to the free movement of goods is prohibited by Articles 34 and 35 TFEU. Unlike competition law, Article 34 TFEU does not distinguish between measures based on the intensity of their effects on trade within …

249. What is a quantitative restriction?

Quantitative restrictions, prohibited by Article 34 TFEU, are defined as total or partial limitations on import or transit (e.g., quotas, contingents). This definition encompasses any national measure likely to hinder imports, even if it applies …

250. What is a measure having equivalent effect?

Directive No 70/50 of 22 December 1969, now repealed, defines measures having equivalent effect as “laws, regulations, administrative provisions, administrative practices, and all instruments issuing from a public authority, including …

251. In what cases can national measures be classified as discriminatory measures?

National measures that specifically or at least more heavily affect imported products than domestic products are inherently discriminatory. Some measures that appear restrictive are not discriminatory as long as they meet a specific need of the …

252. Is a national regulation indistinctly applicable to imported products and domestic products likely to hinder the free movement of goods?

Since the “Cassis de Dijon” ruling, the prohibition of Article 34 TFEU applies to any commercial regulation likely to hinder trade between Member States, whether or not it is indistinctly applicable to domestic and imported products, as long as it …

253. Which product characteristics are covered by the prohibition?

Traditionally, “characteristics” of the product are understood to mean name, shape, dimensions, weight, composition, presentation, or packaging. Since the Cassis de Dijon ruling, even if indistinctly applicable to domestic products and legally …

254. Can measures concerning the use of a product constitute a measure having equivalent effect?

Case law distinguishes between the characteristics of the product and its use. Regulation that neither aims nor results in treating products from other Member States less favorably, but restricts the use of a product on national territory, …

255. Are terms of sale subject to the prohibition of Article 34 TFEU?

Since the Keck and Mithouard ruling, case law establishes a distinction between selling arrangements and product characteristics, with the former benefiting from a presumption of legality due to their looser connection with the free movement of …

256. What is meant by a measure having an effect equivalent to a quantitative restriction on exportation?

Any national measure that establishes a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to ensure a particular advantage to national production or the domestic market of the State …

257. Are there exceptions to the principle of prohibiting measures having equivalent effect?

The Treaty on the Functioning of the European Union establishes, in Article 36, genuine exceptions to the free movement of goods. While framing the legal exceptions, the court has relaxed the principle of prohibition, which has led it to introduce, …

258. What are the legal exceptions justifying a quantitative restriction?

Article 36 TFEU provides an exhaustive list of legal exceptions to the principle prohibiting measures having equivalent effect: Public morality, public policy and public security Reasons of public morality are widely accepted by the Court of …

259. Can restrictions on free movement be exempted under a rule of reason?

The European judicature has developed a system of interpretation favorable to certain restrictive measures on the free movement of goods. This rule of reason allows for the assessment of unilateral measures adopted by Member States solely within …

260. What mandatory requirements can be enforced against the prohibition of measures having equivalent effect?

In the Cassis de Dijon ruling, the Court mentioned only four mandatory requirements allowing the rejection of the classification of a measure having equivalent effect: the effectiveness of fiscal controls, the protection of public health, the …