PQ EU Law

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This question concerns the free movement of goods in Union law.

Article 34 TFEU must be


applied to assess the legality of the physical hindrances to trade that have been identified.

Article 34 provides; “Quantitative restrictions on imports and all measures having equivalent
effect should be prohibited between member states (MS).” Measures having equivalent effect
(MEQRs) are defined in Dassonville in the following way; “All trading rules enacted by MS which
are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are
to be considered as MEQR.

As per the definition provided it could be said that French regulation of not mentioning any word
related to meat or dairy product somewhat hinder the free movement of goods so here it could
be considered as an MEQR. Further name based restrictions (like banning the use of any
phrase) on any product is previously regarded as an MEQR by court in the case of Clinique
laboratories. So here this above mentioned French legislation is also considered as MEQR, so it
might violate Art.34 unless justified by Art.36 and proportionality.

Before justifying this MEQR, first the question here arises is whether this MEQR is a distinctly or
indistinctly applicable measure. This restriction would be an indistinctly applicable measure as it
applies to both domestic and imported products but has a greater impact on the imported
product. As it is a French legislation so here it could be assumed that it would be applicable to
its domestic products so here it could be said that this MEQR is indistinctly applicable measure.
This French restriction imposed on VW clearly violates Art.34, as here French legislation has
placed a dual burden on VW (Cassis de Dijon). So in order to justify this restriction we have to
consider the mandatory requirement given by the case of Cassis de Dijon. One of the
justifications given by cassis is that consumer protection (as mentioned in the fact) would be
applicable here, as the aim of the French legislation is to well-informed its consumer about the
product they would be buying, so this falls under the justification of consumer protection
(cassis). Further, here the restriction of repackaging would likely be justified as it is a product
requirement, but advertising restriction might not be justified as it is a selling arrangement
(Keck). In order to justify the advertising restriction, we would have to assess whether this
restriction impedes access to the market? If it impedes access to the market then it would be
regarded as an MEQR under Art.34 and if it does not impede access to the market then it won’t
be regarded as restriction.

As MEQR imposed by French legislation is justified and now the question arises whether this
restriction is justified or not. In order to assess this we should look at suitability, necessity and
proportionality of restrictive measures (Commission v Germany). This measure adopted by
France would not be suitable and necessary as they could have achieved the same effect by
adopting a less restrictive measure which could be a labeling requirement (Joined Cases),
instead of repackaging they would replace the label of the products which would be the lesser
restrictive measure. Further here proportionality requirement won’t be satisfied as well, as there
won’t seem to exist any legitimate aim to infringe the free movement of goods. So it could be
said that measures adopted by French legislation to repack the products might not be
proportionate due the reason mentioned above.
In conclusion, the French legislation restricting the use of meat or dairy-associated terms on
vegan products could be considered an MEQR under Article 34 TFEU. While the repackaging
requirement might be justified for consumer protection, it is likely disproportionate as a less
restrictive labeling requirement could achieve the same goal and advertising restriction would
not be considered MEQR as it is a selling arrangement.

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