Articles 30, 48, 52 and 59 After Keck & Mithouard, and Protection of Rights Arising From Directives After Faccini Dori

2 Colum. J. Eur. L. 217 (1996)

Walter van Gerven. Former Advocate-General, European Court of Justice. Professor at the Universities of Leuven (Belgium) and Maastricht (the Netherlands).

The purpose of this article is to give an overview of the case law of the European Court of Justice (hereinafter the Court). It is primarily meant to put the recent case law of the Court in perspective, not to comment on it.


A. The Broad Scope of Application of Articles 30, 48, 52 and 59.

  1. It is common knowledge that Article 30 EC, prohibiting “all measures having equivalent effect” to quantitative restrictions on imports of goods between Member States, has been broadly interpreted by the Court of Justice in its Dassonville judgment of July 11, 1974. The Court, following Directive 70/ 50, of December 22, 19691 (the Commission’s interpretation of the prohibition of Article 30) read Article 30 as prohibiting not only all kinds of national measures discriminating against goods imported from other Member States as compared to domestic goods, but also “all trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade” (para. 5), even although they are non-discriminatory. In the Community law terminology, the latter are national measures which are “indistinctly applicable” to domestic and imported goods.

Although the prohibition in Article 34 with respect to exports is expressed in the same language as Article 30’s prohibition on imports, the terms “all measures having equivalent effect” as quantitative restrictions on exports of goods have not been interpreted by the Court along the lines of the Dassonville formula. Instead, in its Groenveld decision the Court held that Article 34 is exclusively concerned with “the establishment of a difference in treatment between the domestic trade of a Member State and its export trade, thus making the prohibition of Article 34 dependent on the presence of discrimination. The reason for the different approach is that non-discriminatory national measures, affecting export goods the same way as goods for domestic consumption, do not impose dual standards on the manufacturer at the stage of production. (In contrast, imported goods are subject to double standards – those of the exporting Member State and those of the importing Member State). If dual standards are imposed upon the exporting manufacturer because of the national rules in the Member State of import, these rules may be challenged under the Dassonville ruling.

  1. It took the Court a long time to indicate whether the “sister” prohibitions of Article 30 – Article 59 in the field of services, Article 52 in the field of establishment, and Article 48 in the field of workers – were to be interpreted in the same way: that is, also applicable to “indistinctly applicable” national provisions. With respect to services the Court favored such a broad interpretation of Article 59 in its Sager judgment of July 25, 1991. In that decision, the Court was responding to a preliminary question raised in the course of domestic proceedings by a German patent agent, Mr Sager, against an English company, Dennemeyer & Co Ltd. Dennemeyer provided patent renewal services in several countries, including Germany. These services included the storing of information about clients’ patents in a computer, informing clients when renewal fees fell due, and paying the fees on their behalf. Sager argued that under German law Dennemeyer could not provide these services with respect to German patents, as it did not hold the special license required by German law for providing such services. In its decision, the Court held that Article 59 required not only the abolition of all nationality-based discrimination against a person providing services, but also the abolition of any indistinctly applicable restriction which prohibits or otherwise restricts a provider of services established in another Member State who lawfully provides similar services there. Therefore the German license requirement, even though it did not discriminate on the basis of nationality, was struck down as a restriction in violation of Article 59.

Interestingly enough, in its more recent decision of May 10, 1995, Alpine Investments BV, the Court declared Article 59 equally applicable to national rules (in that case rules prohibiting providers of investment services from making unsolicited telephone calls to potential clients) which prevent offers of services in general including those made to other Member States. In its decision, the Court concentrated immediately on the question whether the prohibition could constitute a restriction on freedom to provide services in another Member State. It answered that question in the affirmative as the prohibition “deprives the operators concerned of a rapid and direct technique for marketing and for contacting potential clients in other Member States.” Indeed, although such a prohibition “is a generally applicable measure . . . [and] . . . not discriminatory,” it “directly affects access to the market in services in the other Member States and is thus capable of hindering intra-Community trade in services.”