The principle of free movement of goods is one of the fundamental principles of the Treaty (Article 28 of the TFEU).
Initially, the free movement of goods was seen as part of a customs union between the Member States, involving abolishing customs duties, quantitative restrictions on trade and equivalent measures, and establishing a standard external tariff for the Union. Later, it served to create an internal market free from obstacles to the free movement of goods.
The elimination of quantitative restrictions between the Member States now is regulated in Articles 34 and 35 of the TFEU.
Article 34 states that “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”.
For its part, Article 35 provides that “Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States”.
In this historical case law, the Court of Justice took the view that all trading rules enacted by the Member States capable of hindering, directly or indirectly, actually or potentially, intra-Community trade were to be considered as measures having an effect equivalent to quantitative restrictions.
The Tribunal de Premiere instance of Brussels referred in a reference for a preliminary ruling two questions on the interpretation of Articles 30, 31, 32, 33, 36 and 85 of the EEC Treaty, relating to the requirement of an official document issued by the government of the exporting country for products bearing a designation of origin.
In the main proceedings, Belgium demanded traders who duly acquired a consignment of scotch whisky in free circulation in France and imported it into Belgium without owning a certificate of origin from the British customs authorities, thereby infringing Belgian rules.
The first question was about whether a national provision prohibiting the import of goods bearing a designation of origin where such interests are not accompanied by an official document issued by the government of the exporting country certifying their right to such assignment constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty.
The CJEU clarified that the requirement of a Member State of a certificate of authenticity which is less easily obtainable by importers of an authentic product that has been regularly put into free circulation in another Member State than by importers of the same product coming directly from the country of origin constitutes a measure having an effect equivalent to a quantitative restriction is prohibited by the Treaty.
The measures adopted by a Member State to prevent unfair practices should be reasonable, and the means of proof required should not act as a hindrance to trade between the Member States and be accessible to all community nationals. Those measures must not, in any case, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Member States.
The National Court also asked the CJEU whether an agreement the effect of which is to restrict competition and adversely affect trade between the Member States when taken in conjunction with a national rule concerning certificates of origin is void when that agreement merely authorizes the exclusive importer to exploit that rule to prevent parallel imports or does not prohibit him from doing so.
In response, the CJEU claimed that the fact that an agreement merely authorizes the concessionaire to exploit such a national rule or does not prohibit him from doing so does not suffice, in itself, to render the contract null and void.
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