← The hardest concepts in European Union law
In one breath
Member States may not impose customs duties or charges of equivalent effect on trade between them, nor quantitative restrictions or measures having equivalent effect on imports and exports. Such a measure may be justified by an express public-interest ground in the Treaty, or by a mandatory requirement, if it is non-discriminatory and proportionate.
The picture
The baker’s van crossing the county line
A baker drives her van across the county line to sell her loaves. Her county has no rule about bread at all. The next county announces that loaves must be square, that each must carry a printed label in the local dialect, and that they may be sold only on Saturdays. The first rule keeps her bread out altogether, the second makes her print special wrappers, and the third affects every baker in the county, whether local or visiting, in the same way.
EU law treats these differently. The Dassonville formula catches any trading rule capable of hindering trade between States, directly or indirectly, actually or potentially, so all three are caught at first glance. Cassis de Dijon adds mutual recognition: goods lawfully made and sold in one State should be admitted in another unless the importing State can justify a rule, for example for consumer protection. Keck then takes out certain “selling arrangements”, such as the Saturday rule, if they hit local and imported goods alike in law and in fact.
Where the picture stops working
A county line is a simple border, but the Treaty rules also reach export restrictions, rules on how a product is made and rules that do not discriminate at all. The picture also skips the second half of the analysis: the justifications in the Treaty (public morality, policy, security, health, national treasures, industrial property) and the Court’s mandatory requirements, each subject to proportionality. And Keck’s line between product rules and selling arrangements is a notoriously difficult one to draw.
How it really works
- 1Know where the rule comes from. The Treaty on the Functioning of the European Union prohibits customs duties and charges of equivalent effect (Articles 28 to 30), and quantitative restrictions and measures having equivalent effect on imports (Article 34) and exports (Article 35). The reading of these provisions is the Court’s.
- 2Check for a customs duty or equivalent charge. These are prohibited outright, with no justification.
- 3Apply the Dassonville formula to a trading rule: is it capable of hindering, directly or indirectly, actually or potentially, intra-Union trade?
- 4Classify the rule. Product requirements (shape, size, composition, labelling) are caught, and the importing State must justify them. Certain selling arrangements that apply to all traders in the territory and affect domestic and imported products alike in law and in fact fall outside Article 34 (Keck).
- 5Look for a justification and test it. Express grounds are in Article 36; the Court has added mandatory requirements such as consumer protection for non-discriminatory rules. The measure must be suitable and proportionate. Where the Union has harmonised the field, the Union act governs.
Why people get it wrong
- Thinking only discriminatory rules are caught. Dassonville covers non-discriminatory rules that hinder access to the market.
- Treating any rule that reduces sales as a breach. After Keck, some selling arrangements fall outside Article 34.
- Forgetting that customs duties and charges of equivalent effect cannot be justified.
- Believing that the Treaty grounds are exhaustive for all measures. The Court’s mandatory requirements apply only to measures that are not discriminatory.
- Skipping proportionality. A good aim does not justify a rule that goes further than needed.
A worked example
The facts are invented
Country A allows a fruit drink containing a certain percentage of juice to be sold under the name “nectar”. Country B requires that anything sold under that name contain more juice, and bars the drink. The producer in A sues in B’s courts. Under Dassonville, B’s rule hinders the import and falls within Article 34.
B must then justify it. It might argue consumer protection, but the Cassis idea of mutual recognition asks whether a less restrictive measure would do, such as a label stating the juice content. If so, a total ban is disproportionate and B’s rule fails. Now suppose B also forbids all fruit-drink sales after ten at night. That is a selling arrangement applying to all traders, domestic and foreign, in the same way, and under Keck it probably falls outside Article 34 altogether.
Try it
A Member State’s rule requires all products sold under a certain name to have a minimum content that imported goods, lawfully made elsewhere, do not meet. Where does the analysis usually begin?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Procureur du Roi v Dassonville, Case 8/74, 1974
- Rewe-Zentral v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), Case 120/78, 1979
- Criminal proceedings against Keck and Mithouard, Joined Cases C-267/91 and C-268/91, 1993
- Van Gend en Loos, Case 26/62, 1963
Where to go next
More hard concepts in European Union law
- Harmonisation and the internal market (Internal market)
- Free movement of workers and Union citizenship (Internal market)
- Freedom of establishment and freedom to provide services (Internal market)
- The EU and the European Convention on Human Rights (Fundamental rights)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.