European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Directive No 70/50 of 22 December 1969 , now repealed, defined measures having equivalent effect as “laws, regulations, administrative provisions, administrative practices, and all instruments issuing from a public authority, including recommendations [...] which either preclude importation or make it more difficult or costly than the disposal of domestic production” (1st and 4th recitals) . The C …

Measures having equivalent effect

Directive No 70/50 of 22 December 1969 , now repealed, defined measures having equivalent effect as “laws, regulations, administrative provisions, administrative practices, and all instruments issuing from a public authority, including recommendations [...] which either preclude importation or make it more difficult or costly than the disposal of domestic production” (1st and 4th recitals) . The Court of Justice has adopted that definition. According to the Court, Article 34 tends “to remove, as between Member States, all barriers to the free movement of goods and, in particular, those which are specifically aimed at imported products or which apply to imported products and to domestic products under different conditions so as to render the marketing of imported products more difficult or expensive” .

In the Dassonville judgment , the Court of Justice adopted a very wide definition of the concept of measure having equivalent effect that it applied to “all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade” . The concept of measure having an effect equivalent to a quantitative restriction within the meaning of Article 34 TFEU covers both restrictions and prohibitions of import . To be prohibited, the measure is not required to have an immediate effect on intra-EU trade, it is sufficient for it to be likely to restrict trade within the Union . It is irrelevant that the object of a measure is to regulate the trade of goods between Member States; what is decisive is its actual or potential effect on intra-EU trade . By contrast, there must be a causal link between the measure and its restrictive effect. Effects that are too indirect or too uncertain preclude prohibition .

A distinction may be made between two types of measures having equivalent effect: discriminatory measures which specifically cover imported products and constitute unlawful measures by nature  and measures applicable without distinction to all products, such as those concerning the characteristics of the product, the use of the product or its sales terms, which are not necessarily unlawful.

Commission Directive No 70/50/EEC of 22 December 1969 based on the provisions of Article 39(7) TFEU (formerly Article 33(7)), on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty, OJ, L 13 of 19 January 1970, which also indicates that those measures also include "those which make access of imported products to the domestic market, at any marketing stage, subject to a condition which is not laid down for domestic products or to a condition differing from that laid down for domestic products, and more difficult to satisfy, so that a burden is thus placed on imported products only; [...] those which, at any marketing stage, grant to domestic products a preference, other than an aid, to which conditions may or may not be attached, and where such measures totally or partially preclude the disposal of imported products".

Case 4/75 Rewe Zentralfinanz v Landwirtschaftskammer Bonn [1975] ECR 843, LawLex200900001969JBJ; Case 74/76 Ianelli v Meroni [1977] ECR 557, LawLex200500005392JBJ; Case 75/81 Blesgen [1982] ECR 1211, LawLex200900002158JBJ; Case 95/81 Commission v Italy [1982] ECR 2187, LawLex200900002162JBJ; Case 103/84 Commission v Italy [1986] ECR 1759, LawLex200900001439JBJ.

Case 132/80 United Foods [1981] ECR 995, LawLex200900001520JBJ. 

Case 8/74 Dassonville [1974] ECR 837, LawLex200500005388JBJ.

Case C-573/12 Ålands Vindkraft AB, Judgment of 1 July 2014, LawLex201400002166JBJ, holding that national legislation in favor of renewable energies which places  suppliers and certain consumers under an obligation to deliver annually a certain number of electricity certificates, corresponding to a proportion of the total volume of electricity that they have supplied or  consumed, failing which they must pay a specific fee, constitutes a measure having equivalent effect to quantitative restrictions on imports  where it is capable of hindering, directly or indirectly, actually or  potentially, imports of electricity, especially green electricity, from other Member States; Case C-602/19 Kohlpharma GmbH v Germany, Judgment of 8 October 2020, LawLex202100004719JBJ, finding that a national legislation which makes all amendments to the particulars and documents relating to a medicinal product that is the subject of a  parallel import license conditional on the competent authority’s  approval is capable of preventing the importer of that medicinal product  from presenting its particulars and documents in the manner that it  considers the most appropriate for the prescription of that medicinal  product and, thus, of hindering the marketing of that product, where there is not sufficient evidence of a risk to the effective protection of the life and health of humans to justify such a restriction.

Case 34/79 Henn and Darby [1979] ECR 3795, LawLex201100000327JBJ. For a more recent example, see Case C-456/10 Asociacion Nacional de Tabaco y Timbre, Judgment of 26 April 2012, LawLex201200000958JBJ, classifying the prohibition on tobacco retailers of a Member State from importing tobacco as a measure having equivalent effect; Case C-428/12 Commission v Spain, Judgment of 3 April 2014,  not available in English, concerning a national legislation that requires, for vehicles with a maximum authorized mass exceeding 3.5 tons, that, in order to obtain a license for complementary private goods transport , the first vehicle of a company's fleet must not be older than five months from its first registration.

Case 124/85 Commission v Greece [1986] ECR 3935, LawLex200900001519JBJ.

Case C-143/03 Commission v Italy, not available in English.

Case C-93/92 CMC Motorradcenter v Baskiciogullari [1993] ECR I-5009, LawLex200900001210JBJ; Case C-44/98 BASF [1999] ECR I-6269, LawLex200700001820JBJ.

Case 34/79 Henn and Darby [1979] ECR 3795, LawLex201100000327JBJ.

European Business Law

30. Measures having equivalent effect

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Les décisions de justice citées dans ce paragraphe :

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30. Measures having equivalent effect

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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