Phase 1: Dassonville (Article 34 - Free Movement of Goods)

Phase 1: Dassonville (Article 34 - Free Movement of Goods)

Geddo v Ente Nazionale Riso (1973):

• Context: Italian regulations imposed a quantitative restriction on the import of rice.

• Decision: The ECJ held that Article 34 TFEU covers not only quantitative restrictions but also any measures that create a total or partial restraint on the free movement of goods. This case established that measures affecting trade need not be overtly discriminatory to fall under Article 34; they simply need to impact trade.

Dassonville (1974):

• Context: A Belgian shop wanted to sell Scottish whiskey but needed a certificate of authenticity, which was costly and difficult to obtain. France had looser requirements.

• Decision: The ECJ introduced the "Dassonville formula," stating that “all trading rules…capable of hindering, directly or indirectly, actually or potentially, intra-Union trade” are considered measures having equivalent effect (MEQRs) and thus violate Article 34. This ruling extended the scope of Article 34 beyond discriminatory measures to include any rule that could hinder trade, whether directly or indirectly, actually or potentially.

Dassonville Formula:

• Definition: This formula includes all measures that might hinder trade within the EU, regardless of whether the measure is directly discriminatory or only has a potential impact. This broad interpretation covers both legally binding rules and non-legally binding measures.

Familiapress (1997) and Bluhme (1998):

• Context: These cases clarified that the term “trading rules” in the Dassonville formula should be interpreted broadly.

• Impact: The cases showed that even if a measure does not explicitly use trade-related terminology, if it impacts trade, it could still be considered an MEQR.

General Agreement on Tariffs and Trade (GATT):

• Context: The GATT 1948, a precursor to the WTO, included Article XI, which called for the general elimination of quantitative restrictions.

• Impact: While GATT focused on anti-discrimination, Article 34 TFEU added an extra dimension by covering measures having equivalent effect to quantitative restrictions, thus broadening the scope of what could be considered a barrier to trade.

Foie Gras Case (Commission v France, 1997):

• Context: France imposed strict standards on foie gras, which was argued to be a violation of Article 34 due to its restrictive impact on imports.

• Decision: The ECJ upheld the violation, emphasising that Article 34 applies even if the restrictive measure impacts only a small part of the market and even if the product in question is produced in minimal quantities in other MS.

Commission v Ireland (Buy Irish) (1984):

• Context: Ireland’s advertising campaign encouraged consumers to buy domestic products rather than imports.

• Decision: The ECJ ruled that such a campaign violated Article 34 because it potentially restricted imports, even though actual import levels had increased. The potential impact on trade was sufficient for a violation, highlighting that Article 34 is concerned with potential restrictions, not just actual outcomes.

Peralta (1994):

• Context: The case involved a Spanish regulation that was argued to have a potential, albeit uncertain, impact on trade.

• Decision: The ECJ found that Article 34 did not apply because the possibility of restriction was too remote and indirect. This case illustrated the application of the remoteness test, where the impact on trade must be more direct and certain to fall under Article 34.

Bluhme (1998):

• Context: Denmark imposed a ban on keeping certain species of bees, which was challenged under Article 34.

• Decision: Despite the fact that the banned species represented less than 1% of Danish territory, the measure was still considered an MEQR. The Court rejected the de minimis rule (a principle that minor impacts should not be considered) and instead applied the Dassonville formula broadly.

AG Jacobs in Schmidberger v Austria (2003):

• Context: Involved a case where Austria’s regulations were questioned under Article 34.

• Decision: AG Jacobs noted that the remoteness test in Peralta could be seen as a de minimis rule in disguise. This suggests that even minor restrictions could fall under Article 34 if they impact intra-Union trade.

Transition from Dassonville to Cassis de Dijon:

• Dassonville: Established that any measure that could hinder trade was covered by Article 34.

• Cassis de Dijon (1979): Added that while discrimination was not a necessary ingredient for an MEQR, the measure’s impact on trade was critical. This case introduced the principle of mutual recognition, stating that goods lawfully produced and marketed in one MS should generally be accepted in others, further defining the scope of Article 34 and balancing it against national regulations.

Summary: The interpretation of Article 34 TFEU has evolved to encompass a broad range of measures that might hinder trade between Member States. The transition from the Dassonville formula to the Cassis de Dijon principles reflects a nuanced approach to balancing market integration with national regulatory autonomy.