The Application of EC Law by National Courts: The Free Movement of Goods

By Malcolm A. Jarvis | Go to book overview

4 Article 34 EC and exports

1 INTRODUCTION

Article 34 EC is very much the black sheep of the free-movement-of-goods herd. While the wording of the first part of that Article 1 is identical to the wording of Article 30 EC concerning import restrictions, the ECJ has always taken a less rigorous attitude towards restrictions on exports than it has towards restrictions on imports. In the case of national export restrictions, the ECJ has held that discrimination is a necessary element in concluding that a particular measure is a measure having equivalent effect to an export restriction. This is in contrast to the Dassonville interpretation of Article 30 under which, as we have seen, discrimination is not a prerequisite for the application of that Article. This interpretation of Article 34 was first set out by the ECJ in Groenveld v. Produktschap voor Vee en Vlees.2 That case concerned Dutch legislation banning the possession of horsemeat by manufacturers of meat products which was designed to safeguard exports of such products to such countries which prohibit the sale of horseflesh. The ECJ held that the Dutch legislation was non-discriminatory and did not breach Article 34 since

[T]hat provision concerns national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference of treatment between the domestic trade of a Member State and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the State in question at the expense of the production or of the trade of other Member States.3

In other words, the national measures must be clearly discriminatory before they will be held to breach Article 34.4

Although it was at first thought that the Groenveld judgment would prove to be an exceptional judgment handed down by a Chamber of the ECJ, the interpretation of Article 34 in that judgment has proved to be durable. The ECJ has applied and repeated the operative part of the

____________________
1
Art. 34 EC provides: 'Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.'
2
Case 15/79 [1979] ECR 3409; [1981] 1 CMLR 207.
4
See, e.g. Case 53/76 Bouhelier [1977] ECR 197, [1977] 1 CMLR 436; Case C-47/90 Etablissments Delhaize and Compagnie Le Lion SA v. Promalvin SA and Age Bodegas Unidas SA [1992] ECR I-3669; Case C-426/92 Germany v. Deutsches Milch-Kontor GmbH [1994] ECR 1-2757.

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