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

Any national measure which establishes a difference in treatment between the domestic trade of a Member State and its export trade in such as way as to provide a special advantage for national production or for the domestic market of the State in question, constitutes a measure having an effect equivalent to a quantitative restriction on exports , regardless of the purpose for which it has been in …

Discriminatory or non-discriminatory measures

Any national measure which establishes a difference in treatment between the domestic trade of a Member State and its export trade in such as way as to provide a special advantage for national production or for the domestic market of the State in question, constitutes a measure having an effect equivalent to a quantitative restriction on exports , regardless of the purpose for which it has been introduced .

Article 35 TFEU covers both restrictions occurring at, or close to, the frontier and those taking place within the exporting State when a border transit will occur . For measures having equivalent effect to quantitative restrictions on imports (Art. 34 TFEU), reverse discriminations are not prohibited: a measure applying a less favorable treatment to products intended for the domestic market than to products intended for export does not constitute a measure having equivalent effect. The discrimination must be to the detriment of the product intended for export for the prohibition to be applied . Likewise, the restrictive effects on intra-EU trade resulting from a quantitative restriction on export must not be too uncertain and indirect , but may be merely implicit .

Obstacles to exports may result, inter alia, from a restriction on sales abroad , the reserving of the “right to export” to certain operators , or discrimination applied in the context of controls on exports , concerning the conditions of application of a quality standard  or the conditions of use of a designation of origin .

In the Groenveld judgment , the Court of Justice made the measures of effect equivalent to a quantitative restriction on export subject to specific rules although Articles 34 and 35 are similarly worded. According to the Court, the prohibition of Article 35 does not apply to national measures that do not contain any difference in treatment for products intended for export and those marketed within the Member State in question. In accordance with that case-law, neither a national provision prohibiting production before 4 AM in the bread and confectionery industry , nor the European regulation providing for prior administrative supervision of the rules for granting aid concerning the production of a foodstuff  constitute measures having an equivalent effect to quantitative restrictions on export where they do not result in any difference in treatment.

After a judgment rendered on 16 December 2008 by the Grand Chamber , the Court of Justice has reviewed its interpretation and brought the scope of application of Article 35 in line with that of Article 34: the prohibition, applicable to all traders active in the national territory, whose actual effect is greater on goods leaving the market of the exporting Member State than on the marketing of goods on the domestic market of that Member State, constitutes a measure having an effect equivalent to a quantitative restriction on export. Now, Article 35 applies even if the measure covers exports and domestic sales without distinction, unless justified by mandatory requirements.

Case C-47/90 Delhaize Frères v Promalvin and others [1992] ECR I-3669, LawLex200900000967JBJ.

Case 53/76 Bouhelier [1977] ECR 197, LawLex200900001996JBJ: principle drawn during the review of a national regulation which required quality standards to be applied only for products intended for export and therefore leading to arbitrary discrimination.

Case C-108/01 Consorzio del Prosciutto di Parma and Salumificio S. Rita [2003] ECR I-5121, LawLex200900000349JBJ; Case C-388/95 Belgium v Spain [2000] ECR I-3123, LawLex200700001644JBJ; Case C-47/90 Delhaize Frères v Promalvin and others [1992] ECR I-3669, LawLex200900000967JBJ.

Case 15/79 Groenveld [1979] ECR 3409, LawLex200900001563JBJ, which considers that a national provision prohibiting all producers from having in stock, preparing and processing products is not a measure having an equivalent effect to quantitative restrictions on exports, insofar as the prohibition is applied objectively to the production of goods of a certain kind without drawing a distinction depending on whether such goods are intended for the national market or for export; See, also: Case C-339/89 Alsthom v Sulzer [1991] ECR I-107, LawLex201100000299JBJ.

Case 155/80 Oebel [1981] ECR 1993, LawLex200900001575JBJ.

Case 15/83 Denkavit Nederland [1984] ECR 2171, LawLex200900001566JBJ.

Case C-205/07 Gysbrechts and Santurel Inter [2008] ECR I-9947, LawLex200900001109JBJ.

Case C-272/95 Bundesanstalt für Landwirtschaft und Ernährung v Deutsches Milch-Kontor [1997] ECR I-1905, LawLex200900002167JBJ.

Case C-80/92 Commission v Belgium [1994] ECR I-1019, LawLex200900001181JBJ, national law which provides for the possibility of an exemption from administration certification only for products intended for export.

Case C-412/97 ED [1999] ECR I-3845, LawLex200900000747JBJ: too uncertain and indirect effects of a national law prohibiting recourse to the procedure for a summary payment order where service on the debtor is effected in another Member State.

Case 173/83 Commission v France [1985] ECR 491, LawLex200900001603JBJ: National regulation setting up a system for the collection and disposal of waste oils containing, by implication, a prohibition on the export to a disposal or regenerating undertaking authorized by another Member State.

See for a system of State aid which establishes an incentive for producers in a specific region of a Member State to sell their production to local processors: Case C-113/00 Spain v Commission [2002] ECR I-7601, LawLex200500004839JBJ; See, also, Case 172/82 Fabricants raffineurs d'huile de graissage v Inter-Huiles [1983] ECR 555, LawLex200900001602JBJ and Case 173-83 Commission v France [1985] ECR 491, LawLex200900001603JBJ, national regulation setting up a system for the collection and disposal of waste oils containing, by implication, a prohibition on the export to a disposal or regenerating undertaking authorized by another Member State.

Case C-37/92 Criminal proceedings against Vanacker and Lesage [1993] ECR I-4947, LawLex200900000563JBJ, national provision which allows an approval for exports to be granted only to national undertakings; Case C-209/98 Sydhavnens Sten & Grus [2000] ECR I-3743, LawLex200400003583JBJ, collection system which prevents qualified intermediaries from participating in the collection of waste with a view to reselling it in other Member States.

Case C-203/96 Chemische Afvalstoffen Dusseldorp and others / Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [1998] ECR I-4075, LawLex200400003606JBJ, national provision which makes the export of waste subject to the existence in the Member State of destination of processing that is superior to that performed in the national territory; Case C-293/02 Jersey Produce Marketing Organization [2005] ECR I-9543, LawLex200900001417JBJ, regulation prohibiting potato producers from the island of Jersey from exporting potatoes for the UK market, on penalty of a fine, unless they are registered with an organization and have entered into a marketing agreement with it in order to determine the areas which may be planted with crops for export as well as the identity of those authorized to acquire those crops.

Case 53/76 Bouhelier [1977] ECR 197, LawLex200900001996JBJ.

European Business Law

36. Discriminatory or non-discriminatory measures

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36. Discriminatory or non-discriminatory measures

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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