European Union Law

Free Movement of Goods - Articles 23-30 EC

One of the most important freedoms of the common market is the free movement of goods in the EU. This issue could
come up as an essay or problem question, and however it is examined there are a number of key statutes and cases
which you must not fail to mention, as well as many other cases which may have similar facts to a problem question.
such as those in the cases of
Mars and Schwarz, DO breach
Article 28.
Article 30 provides more
exceptions whereby
restrictions shall not be
precluded on grounds such as
public policy or the protection
of health.
The list is exhaustive and
restrictions must, like those in the
Rule of Reason, be proportionate.
Important cases outlining Article
30 restrictions include:
- Henn v Darby
- Re Export Tax on Art Treasures
- Conegate v Customs & Excise
- R v Thompson
Article 23 - prohibition of
customs duties or equivalent
between Member States.
Article 25 - M.States must not
impose any new customs
duties.
See case of Van Gend en Loos
(1963) where a new, higher duty
was in direct contravention of
Article 25 and so was challenged
by the importers.
Articles 28/29 - Quantitative
restrictions on imports/exports
and all measures having
equivalent effect shall be
prohibited between M.States.
These articles and the exact
meaning of such contravening
measures form the bulk of this
topic. Case law has elaborated
on this Article.
Quantative restrictions include
any system or ban which totally
or partially restricts either imports
or exports. They act as a barrier
to free trade within the EU.
Measures having equivalent
effect (MEQRs) create
complications as they are not
defined by the Treaty.


KEY CASE - Dassonville
This case is influential in that it
provides the definition of a MEQR
- All trading rules enacted by
Member States which are capable
of hindering, directly or indirectly,
actually or potentially,
intra-Community trade.
MEQRs have subsequently been
divided into:
Distinctly applicable measures -
which apply only to imported
goods; and
Indistinctly applicable measures -
which also apply to domestically
produced goods. It is harder to
show that these are in breach of
free trade, however apart from a
few exceptions which were
identified in the following case,
they are considered to breach
Articles 28 and 29.
KEY CASE - Cassis de Dijon
The law in question was a
German one that prohibited the
sale of various liquors with an
alcohol content of less than 25%.
Cassis de Dijon was a French
liquor with an alcohol content of
15-20%. Therefore although the
regulation was indistinctly
applicable, its effect was to ban
French cassis from the German

nces t
marketplace.
There were two key principles to
arise out of Cassis which
explain the ruling of the case.
The first principle (the Rule of
Reason) allows for certain
circumstances when indistinctly
applicable restrictions would be
allowed; if they could satisfy the
following mandatory
requirements:
Effectiveness of fiscal
supervision, the protection of
public health, the fairness of
commercial transactions and the
defence of the consumer.
In Cassis it was unsuccessfully
argued that the measure was
necessary on the grounds of the
protection of public health.
Another example includes the
Cinetheque case where the
cultural characteristics of a
Member State were put forward
as an exception and were
considered proportionate,
whereas the restrictions in
Cassis to completely ban the
product were disproportionate to
the protection of public health
concern.
The second principle to come
out of Cassis was the mutual



recognition rule, which states that
where a product has been
introduced into one M.State,
there is no reason why it should
be imported into another, and any
restriction would breach the
Article.
Cases discussing this rule include
Walter Rau v De Smedt
(cube-shaped margarine tubs)
and Commission v Germany
(German beer purity law).
KEY CASE - Keck
This case further divided
indistinctly applicable measures
into selling arrangements, which
would not breach Article 28, and
product-related requirements,
which would. This was necessary
as traders were beginning to
challenge every national rule that
even slightly limited commercial
freedom. It was decided that not
all differences should be removed
due to one countrys rules being
stricter than others.
In Keck, a French law prohibited
the selling of goods at a loss.
This was considered a selling
arrangement and so did not
breach Article 28. In contrast,
product-related requirements,
which often relate to the
packaging aspects of the product,