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European Business Law

National measures which have as their object to specifically affect imported products or at least more significantly than national products, are by nature discriminatory. They can be justified only by the exceptions provided for in Article 36 TFEU, which are of strict interpretation, and may not be justified by imperative requirements originating in the case law . 
The courts have retained several …

Discriminatory measures

National measures which have as their object to specifically affect imported products or at least more significantly than national products, are by nature discriminatory. They can be justified only by the exceptions provided for in Article 36 TFEU, which are of strict interpretation, and may not be justified by imperative requirements originating in the case law . 

The courts have retained several types of measures specifically applicable to imported products:

- requirement of a particular status for importation ; 

- requirement of particular financial conditions ;

- indication of a specific origin on the imported products ; 

- measures having as their object or effect to favor or limit national production .

Some seemingly restrictive measures are not discriminatory however. Examples include prohibition on the storage, tipping or dumping in a particular region of waste originating in another Member State or another region, where waste is subject to the principles of self-sufficiency and proximity according to which each local authority must ensure that its own waste is collected, treated and disposed of as close as possible to the place where it is produced , or national legislation which makes the registration of an imported vehicle subject to an identification procedure, where that mere formality does not introduce any additional checks and does not deter the owner of the vehicle in the light of its cost, duration and time-limit for implementation .

Case C-1/90 Aragonesa de Publicidad Exterior and Publivia / Departamento de Sanidad y Seguridad Social de Cataluña [1991] ECR I-4151, LawLex200900000275JBJ.

Case 34/79 Henn and Darby [1979] ECR 3795, LawLex201100000327JBJ; Case 124/81 Commission v United Kingdom [1983] ECR 203, LawLex200900001518JBJ; Case 174/82 Sandoz [1983] ECR 2445, LawLex200900001604JBJ: measure which obliges the importer to provide proof that the marketing of the product meets a market demand; Case 155/82 Commission v Belgium [1983] ECR 531, LawLex200900001576JBJ: national measure which makes the importation of products conditional on the requirement of having a representative in the national territory in order to facilitate the completion of the approval formalities, to favor the rules on labelling, the verification of the conformity of the product and the availability of information in the event of an accident or a complaint; Case 190/87 Oberkreisdirektor des Kreises Borken and others v Moormann [1988] ECR 4689, LawLex200900001636JBJ: national legislation which provides for the systematic inspection of goods on entry into the country of destination and imposes significant administrative formalities; Case C-189/95 Criminal proceedings against Franzén [1997] ECR I-5909, LawLex200900000764JBJ: a national licensing system which makes importation of alcoholic beverages subject to additional costs, such as intermediary costs, costs linked to the payment of charges and duties for the grant of a license, or costs arising from the obligation to maintain storage capacity in the national territory; Case C-120/95 Decker v Caisse de maladie des employés privés [1998] ECR I-1831, LawLex200900000411JBJ: national legislation which refuses to reimburse to the insured person the costs of spectacles purchased from an optician established in another Member State; Case C-398/98 Commission v Greece [2001] ECR I-7915, LawLex200900000677JBJ: national legislation which allows marketing companies of petroleum products to transfer to refineries established on the national territory their obligation to maintain emergency stocks but makes the transfer capacity subject to the purchase of a certain quantity of products from those refineries; Case C-488/20 Delfarma sp z.o.o., Judgment of 25 November 2021, LawLex202300003400JBJ, automatic expiry of the validity of a parallel import authorization for medicinal products due to the withdrawal of the LawLex202400004485JBJmarketing authorization of reference; Case C-666/21 Booky.fi Oy, Judgment of 23 January 2023, LawLex202400004485JBJ, which classifies as a measure having equivalent effect the measure relating to the control, classification and labelling of audiovisual programs, an obligatory prerequisite for their sale via an online store, which, by making the importation of audiovisual program recordings from another Member State more restrictive and costly, is liable to hinder access to the market of the Member State concerned, of audiovisual program recordings originating from other Member States.

Case 190/87 Oberkreisdirektor des Kreises Borken and others v Moormann [1988] ECR 4689, LawLex200900001636JBJ: national legislation which provides for the systematic inspection of goods on entry into the country of destination and imposes significant administrative formalities; Case C-205/89 Commission v Greece [1991] ECR I-1361, LawLex200900002059JBJ: national rules which subject the importation of pasteurized butter to the requirement of a health certificate; Case C-249/07 [2008] ECR I-174, Commission v Netherlands, Summ. pub..

Case 132/80 United Foods [1981] ECR 995, LawLex200900001520JBJ; See, also, Case C-217-99 Commission v Belgium [2000] ECR I-10251, LawLex200700001611JBJ: measure which forces an importer to incur additional packaging costs, the prohibition applying even if those extra costs are ultimately borne by consumers; See, also, Case 124/81 Commission v United Kingdom [1983] ECR 203), LawLex200900001518JBJ: a measure which requires imported UHT milk to be packed on premises within the territory, making it necessary to re-treat and repack that milk which constitutes the equivalent of a total prohibition on imports; Case C-189/95 Criminal proceedings against Franzén [1997] ECR I-5909, LawLex200900000764JBJ: national licensing system which makes importation of alcoholic beverages subject to additional costs, such as intermediary costs, costs linked to the payment of charges and duties for the grant of a license, or costs arising from the obligation to maintain storage capacity in the national territory.

Case 13/78 Eggers [1978] ECR 1935, LawLex200900001531JBJ; Case 113/80 Commission v Ireland [1981] ECR 1625, LawLex200900001468JBJ: national rules making the importation of all souvenirs subject to an indication of origin or the word “foreign”.

Case 152/78 Commission v France [1980] ECR 2299, LawLex200900001571JBJ: national law which authorizes advertising in respect of certain national products whilst advertising in respect of products originating in other Member States and having comparable characteristics is restricted or entirely prohibited; Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889, LawLex200400002910JBJ; Case C-240/95 Criminal proceedings against Schmit [1996] ECR I-3179, LawLex200900002136JBJ: for a Member State's legislation on model-year dates for motor vehicles which causes the administrative authorities and traders of that Member State to consider that, where two motor vehicles of the same model and make sold in that Member State after 30 June, only the vehicle which is the subject of parallel import is to be prohibited from being marketed as being of the following model year; Case C-321/94 Criminal proceedings against Pistre and others [1997] ECR I-2343, LawLex200900000298JBJ: measure which reserves use of a description to products manufactured on the national territory only; Case C-120/95 Decker v Caisse de maladie des employés privés [1998] ECR I-1831, LawLex200900000411JBJ: national legislation which refuses to reimburse to the insured person the costs of spectacles purchased from an optician established in another Member State; Case C-114/00 Spain v Commission [2002] ECR I-7657, LawLex200500004840JBJ: a State aid system which encourages processing industries established in a given region of a Member State to purchase raw materials from producers in the same region.

Case C-2/90 Commission v Belgium [1992] ECR I-4431, LawLex200900002086JBJ: which accepts the measure in view of the requirement of protection of the environment.

Case C-297/05 Commission v Netherlands [2007] ECR I-7467, LawLex200900001430JBJ.

European Business Law

31. Discriminatory measures

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31. Discriminatory measures

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise