Free Movement of Goods

I'm trying to make my notes for free movement of goods, but there is something that is really confusing me.

I have read through Dassonville, that's fine, but then I get to Cassis de Dijon and it talks about indistinctly applicable measures. So my understanding was that indistinctly applicable measures are measures which apply in the same way to both domestic and imported goods. These measures may be justified by madatory requirements, of which are non-exhaustive. Is this correct so far?

Then Keck comes up - so Dassonville is left intact for distinctly applicable measures (what are these - measures which are only applicable to imported goods?), but Dassonville is otherwise overruled? And if this is the case, what is otherwise? Does otherwise refer to indistinctly applicable measures? And if it does, I thought that this was covered by Cassis de Dijon?!

Then further into my notes, I read about defences to discriminatory measures. Now this refers to Article 30, which makes me think discriminatory measures = distinctly applicable measures...is that right?

Reply 1

dilated

not sure if the mandatory requirements are non exhaustive
keck mainly just identifies "selling arrangements" - rules relating to the market circumstances in which the goods are sold, thus rules relating to where, when, how and why the goods may be sold
distinct measures just apply to domestic goods?
article 30 is used for indistinct AND distinct measures but if a problem involves indistinct measures the courts mainly use cassis rule of reason

Reply 2

Happy1

I just think of it as this -

Dassonville applies to distinctly applicable measures (measures that are applicable only to non-domestic imports/exports). All distinctly applicable and restrictive trading rules are contrary to Art 28 EC unless Art 30 EC applies as a defence.

Cassis de dijon applies to indistinctly applicable measures (measures that are applicable to both domestic and non-domestic imports/exports). These are only contrary to Art 28 EC if the effects of the restriction are disproprtionate to their purposes. Where the effects are disproportionate, Art 30 EC does not apply as a defence, but the 2 principles (rule of reason and mutual recognition) may provide a defence instead.

Keck shows the limits of Art 28 EC - selling arrangements do not restrict trade if they apply to all traders and are non-discriminatory. It shows a move to a formal approach which focuses on discrimination. Dassonville and Cassis still stand though. This is pretty specific to selling arrangements.

Reply 3

diastimiki

Hi I am trying to draft a 1000 formative essay on the controversy between Dassonville and Keck. In particular the question is the following: 'If Dassonville is right, then Keck must be wrong'. Does the question actually mean that it is either the one or the other? And that there is no way both cases can be right?

Reply 4

Chinmay Shah

hello guys,
Juist wanted to bother you guys can anyone help me with how to differentiate between and Indistinclty and Indirect Discriminatory and non-discriminatory measures?
so during you assesment how will you differentiate between all these? because a person can easily identify the Distinctly applicable measure but i always get stuck with these.
thanx

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