Lecture Notes: EU Law - Measures Having Equivalent Effect

Cassis de Dijon and Mandatory Requirements

• The Court of Justice established the concept of mandatory requirements in the Cassis de Dijon case.
• Mandatory Requirements:
  • Must be unrelated to the origin of the product.
  • Must serve objectives considered legitimate by the Court of Justice.
• Accepted Mandatory Requirements:
  • Protection of public health
  • Protection of environment
  • Protection of working conditions
  • Fairness of commercial transactions
  • Protection of fundamental rights
  • Preservation and maintenance of order in society
• This concept applies only to indistinctly applicable measures, not to distinctly applicable measures.

Distinctions and Applications

• Article 36 Derogations: Member states may justify certain measures based on these mandatory requirements.
• Sun Wheel Decision: Important for indistinctly applicable measures.
• Keck Judgment (1993):
  • Concerns indistinctly applicable measures and selling arrangements.
  • Product Requirements: Rules related to goods (packaging, size, composition).
  • Selling Arrangements: Not covered by Article 34 if two conditions are met:
    1. Must apply to all traders within the territory.
    2. Must affect marketing of domestic and foreign products in the same manner.

Keck Judgment Applications

• Selling Arrangements Examples: Certain national rules are considered as selling arrangements:
  • Times and Places: Sunday trading rules, requirements for petrol stations to close at night.
  • Prohibition of Selling: Selling in private homes.
  • Advertising Restrictions: Prohibited advertising for certain sectors.
  • Outlet Restrictions: Limitations on specific types of outlets.
• Carnage Decision: Summarized case law on selling arrangements – includes place and time of sale, advertising, and marketing methods.
• Key takeaway: Selling arrangements that meet the conditions are not considered as breaching Article 34.

Article 35 - Prohibition of Non-Tariff Barriers on Exports

• Applies to quantitative restrictions (total bans, quotas) and measures with equivalent effect on exports.
• Delhaize Decision (1992): A Belgian company vs. Spanish rules limiting wine exports,
  • Found that Spanish rules breached Article 35.
• Distinctly Applicable Measures: National rules imposing conditions on exports, like licensing, are prohibited.
• Article 35 covers only distinctly applicable measures on exports, not indistinctly applicable measures or selling arrangements.
• Justifications under Article 36 also apply to exports.

Next Steps

• Importance of understanding proportionality of measures.
• Expected to read chapters on the topics discussed and prepare for further questions and discussions.

Clarifications Needed

• Ensure understanding of proportionality.
• Review additional literature and case law for further comprehension.