Gustave Dassonville, An MEQR (Measure Equivalent To Quantitative Restriction) Was Defined

QUESTION 1
The European Union reserves the right to restrict the free movement of its people on the
grounds of public health. The unprecedented move to invoke this right was enacted by
many member states since March 2020 following the outbreak of the COVID-19 pandemic.
Such restrictions have included bans on tourism and mandatory quarantine upon entry to
certain member states.
While certain restrictions in certain states were challenged on the grounds of their
constitutionality – here, we saw the case of O’Doherty and Waters v Ireland – the courts
sided with the argument of public safety and public health. Unfortunately for Fjodor, he has
fallen victim to the economic hardship that came with these restrictions on movement.
These restrictions, coupled with the rumours circulating regarding Croatian fish, have done
severe damage to his business both currently and potentially in the future. The legality of
the fish rumours will be discussed further below.
I do not believe Fjodor is entitled to take legal action due to his loss of business due to travel
restrictions, nor for the loss of any future earnings due to the fish rumours. Future earnings
cannot be calculated, as well as the fact he is merely indirectly affected by the rumours, in
comparison to Balasz.
Article 34 of the Treaty on the Functioning of the European Union outlines that
“quantitative restrictions on imports and all measures having equivalent effect shall be
prohibited between member states” This article only falls foul if it is an entire member state
banning imports from another member state – a private decision by a company or an
individual is not a breach. Thus, Hungary banning the importation of saltwater fish from
Croatia is a potential breach of article 34, under the principle of mutual recognition,
outlined in the Cassis de Dijon case: “as long as a product is lawfully produced and marketed
in a member state of the EU, it can be marketed in all other member states, unless a
restriction can be justified.” Whether or not a restriction can be justified in this particular
case is doubtful, given the restrictions have been put in place in lieu of uncertified rumours
circulating on social media. As per the Court of Justice in Procureur du Roi v Benoit and
Gustave Dassonville, an MEQR (Measure Equivalent to Quantitative Restriction) was defined
as “all trading rules enacted by member states, which are capable of hindering, directly or
indirectly, actually or potentially, intra-community trade are to be considered as measures
having an effect equivalent to quantitative restrictions.” Dassonville further outlined that
while member states may enact certain restrictions on free trade, such measures should not
be considered to be a hindrance to trade between member states.
Cassis de Dijon outlined that any rules which inhibit trade constitute MEQRs, thus products
that are lawfully manufactured in a member state can be sold in another, unless mandatory
requirements justify restriction – as I have stated before, I do not believe that the
requirements set out by Hungarian public authorities, requiring a special plastic wrapping to
cover Croatian fish, justify such restrictions.
It is worth noting that Hungarian public authorities, whilst not the actual government, are in
breach of article 34 by imposing such restrictions. This is due to the ruling in “Buy Irish”
where, whilst the Irish Goods Council had been set up as a private entity, it still fell under
the restrictions of article 34 due to the Irish Government’s significant influence in the
entity’s formation. Any measure taken by it should be attributed to the State; the same logic
should apply in this scenario.
Article 36 of the TFEU provides that the provisions of Articles 34 and 35 shall not preclude
prohibitions or restrictions on imports, exports or goods in transit justified on grounds of
public morality, public policy or public security or the protection of health and life of
humans. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary
discrimination or a disguised restriction on trade between member states. Granted,
restrictions on trade are justified by means of protection of public health, there are no
reasonable grounds, only here say, to impose MEQRs in this instance. Any exception must
be interpreted strictly, as per Bauhuis – I do not believe this cwill be categorized as an
exception.
It is worth noting that the case of Officer van Justitie v Sandoz outlined that in principle,
restrictions are possible if the health risks in question are uncertain, but proportionality is
necessary. Scientific uncertainty leaves member states with a margin of discretion – it is my
opinion that rumours on social media do not constitute this.
All things considered, I believe that Balasz may take a case to the Court of Justice
demanding a lifting of these restrictions by Hungarian public authorities, as they constitute a
MEQR under article 34 of the TFEU.

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