Free Movement of Goods
Article 34 TFEU:
• Text: “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.”
• Purpose: To ensure the free movement of goods within the EU by prohibiting import restrictions and measures that act like import restrictions.
Quantitative Restrictions on Imports:
• Definition: These include tariffs, quotas, and other numerical limits on the amount of goods that can be imported.
• Objective: To eliminate barriers to trade and facilitate a single market.
Measures Having Equivalent Effect (MEQRs):
• Definition: Any trade barrier that, while not a quantitative restriction, has a similar effect in hindering imports. This could include regulations or practices that discriminate against or otherwise affect foreign goods and services.
• Objective: To ensure that non-tariff barriers are also removed to allow for free movement.
Interpretive Role of the Court of Justice (ECJ):
• Role: The ECJ has a fundamental role in interpreting and applying the principles established in Article 34 TFEU. It determines what constitutes MEQRs and how to apply the rules in specific cases.
Definition of ‘Goods’:
1. Commission v Italy (1968):
◦ Context: The case concerned whether "goods" included products with no commercial value.
◦ Decision: The ECJ defined goods as "products which can be valued in money and which are capable of forming the subject of commercial transactions." Thus, even waste can be regarded as goods.
2. Veedfald (2000):
◦ Context: The case involved human remains and body parts.
◦ Decision: The ECJ ruled that human corpses and body parts are considered goods under Article 34 TFEU.
3. Thompson (1978):
◦ Context: The case questioned whether coins and money are considered goods.
◦ Decision: The ECJ determined that coins and money are not considered goods under Article 34 TFEU.
Directive 70/50:
• Content: Provided a non-exhaustive list of what could constitute MEQRs.
• Role: Served as guidance, but the courts were to decide on a case-by-case basis.
Prohibition of Discrimination:
• Principle: Member States (MS) must treat foreign products and traders equally to local products and traders. For example, if toys from abroad require special authorisation while locally produced toys do not, this would be discriminatory.
Anti-Protectionism vs. Economic Liberalism:
1. Anti-Protectionism:
◦ Principle: Ensures that foreign economic operators are not treated worse than local ones. This principle is closely aligned with the prohibition of discrimination.
2. Economic Liberalism:
◦ Principle: Seeks to remove any obstacle to trade, regardless of whether it affects foreigners more than locals. Any regulatory burden is seen as suspicious and potentially restrictive of trade.
AG Maduro’s Perspective:
◦ View: Article 34 TFEU does not grant an absolute right to economic or commercial freedom. It is not intended to encourage deregulation but rather to promote the benefits of a unified internal market.
Three Phases in Case Law:
1. Expansion:
◦ Dassonville (1974):
▪ Context: The case defined MEQRs as "all trading rules enacted by MS which are capable of hindering directly or indirectly, actually or potentially, intra-community trade.”
▪ Impact: Expanded the scope of what could be considered as MEQRs, focusing on measures that could impede trade, even if not explicitly discriminatory.
◦ Cassis de Dijon (1979):
▪ Context: Concerned whether German rules prohibiting the sale of certain French liqueurs violated Article 34 TFEU.
▪ Impact: Introduced the principle of mutual recognition, stating that goods lawfully produced and marketed in one MS should be allowed to be sold in others.
2. Contraction:
◦ Keck and Mithouard (1993):
▪ Context: The case involved French rules on resale prices.
▪ Decision: The ECJ narrowed the scope of MEQRs, ruling that selling arrangements that apply equally to domestic and imported goods are not considered MEQRs unless they discriminate against imports or hinder market access in a way that is more than merely incidental.
3. Re-Expansion:
◦ Italian Trailers (2009):
▪ Context: The case concerned Italian regulations on the size of trailers.
▪ Decision: Reaffirmed a broader interpretation of MEQRs, emphasising that regulations with a potential to affect the market access of goods, even if not discriminatory, could still be challenged under Article 34 TFEU.
Conclusion: Article 34 TFEU plays a crucial role in the internal market by prohibiting both quantitative restrictions on imports and measures having an equivalent effect. The evolving interpretation of what constitutes a measure having equivalent effect (MEQR) reflects the ECJ's efforts to balance the removal of trade barriers with the need to respect national regulatory autonomy. The principles of non-discrimination and mutual recognition are central to ensuring that the internal market operates smoothly and efficiently.