The characteristics of free movement is the elimination of obstacles to trade between Member States and thus by such, create free movement within the entire union. Therefore art 34 in the Treaty of Lisabon (FEUF) states that all quantative restrictions on imports and measures of equivalent effect are prohibited. The legal approach to measures having equivalent effect is still unclear and the purpose of this paper is therefore to propose a solution to that particular problem. What can be said when it comes to this rule is that the EU-Court has gone from applying a discrimination test to a market access doctrine.
According to the Court´s case law, measures having equivalent effects to quantative restrictions are “All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade”. The question of how to apply the test when it comes to a potential hinder to intra-community trade is still unclear. Connected to this is the remoteness test where hinders that are too indirect and uncertain cannot fall within the ambit of art 34 FEUF. The Courts case law has made it clear that a de minimis rule should not be applied so even small and unsubstantial hinders can fall within art 34 FEUF.
The Court has also stated that a Member State that impedes a product from being imported to it´s territory when it has been lawfully produced and marketed in the member state of origin, constitutes a measure of equivalent effect to quantative restrictions. This is referred to as the Cassis doctrine. In the case law after Cassis, there were a lot of contradicitions as to what constitutes measures of equivalent effects. That problem was solved by the Court in the Keck case where all measures relating to “certain” selling arrangements is not as such as to hinder trade between Member States. However, that is the case as long as they apply to all relevant traders operating within the national territory and as long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States (Keckcriterias). The problem today in connection to Cassis and Keck is that it can be hard to make a distinction between selling arrangements and rules connected to product requirements.
After the development in Keck, the Court stated in the Trailers case that those measures relating to the use of goods which prohibits or impedes the use of them, constitutes measures of equivalent effect and thus are prohibited because they impede the good´s access to the market.
Post Keck case law confirmes that when it comes to Member States national measures, one must apply both the discrimination test and the market access test in order to find out whether the rules falls within the ambit of art 34 FEUF. How this test should be applied is still unclear today, which creates legal uncertainty. This is something for the Court to work on in the future.
2012. , 48 p.