Definition of Terms: The Dassonville Formula
Die Dassonville Formula is a fundamental and influential legal doctrine in the field of European internal market law. It was developed in 1974 by the Court of Justice of the European Communities (now: Court of Justice of the European Union, abbreviated as CJEU) in the judgment ‘Procureur du Roi v. Benoît and Gustave Dassonville’ (Case 8/74). The formula sets the standard for determining so-called measures having equivalent effect to quantitative restrictions on trade in goods between the Member States of the European Union. It is thereby one of the pillars for implementing and securing the free movement of goods within the internal market in accordance with Articles 34 and 35 of the Treaty on the Functioning of the European Union (TFEU).
Historical Background and Development
Origins in the Dassonville Judgment
The Dassonville case concerned the importation of Scotch whisky from France to Belgium, where a Belgian regulation required proof of an origin certificate. Presenting the goods without the corresponding certificate was considered a breach of the quantitative restrictions within the meaning of then Article 30 EEC (now Article 34 TFEU). The CJEU ruled that any trading rule of the Member States capable of hindering intra-Community trade directly or indirectly, actually or potentially, must be regarded as a measure having an equivalent effect to a quantitative restriction.
Key Milestones after Dassonville
The broad definition set forth in the Dassonville judgment has shaped further case law and was later modified by the ‘Keck Formula’ (CJEU Cases C-267/91 and C-268/91) to specify its scope. Nevertheless, the Dassonville Formula remains central for understanding trade barriers and for the application of Articles 34 and 35 TFEU.
Wording of the Dassonville Formula
The core statement of the Dassonville Formula in the original reads:
“All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, trade within the Community are to be considered as measures having an effect equivalent to quantitative restrictions.” (CJEU, Case 8/74)
Legal Context: Articles 34 and 35 TFEU
Significance of the Dassonville Formula for the Internal Market
The provisions of Articles 34 and 35 TFEU prohibit quantitative import and export restrictions as well as measures having equivalent effect between Member States. The Dassonville Formula serves as an interpretive aid in determining which national measures are to be classified as impermissible trade barriers. In particular, it allows for the coverage of indirect, secondary, or potential trade barriers, even if they do not explicitly concern cross-border movement of goods.
Scope of Application
The Dassonville Formula applies to any trading rule of the Member States, regardless of whether it directly targets cross-border trade, as long as it is capable of hindering trade. This includes both binding measures (e.g., laws, regulations, decrees) and certain behaviors and procedures by state authorities.
Structure and Prerequisites of the Dassonville Formula
1. Trading Rule of a Member State
A measure must have its origin in a ‘trading rule’ of a Member State. Trading rules include not only classic laws, but also administrative provisions and other legal requirements affecting trade between the Member States.
2. Hindrance to Trade between Member States
According to the Dassonville Formula, it is sufficient for a measure having equivalent effect if the rule is capable of affecting the flow of goods between two or more Member States. Actual hindrance does not need to be proven; rather, the potential to impede trade is sufficient.
3. Direct or Indirect, Actual or Potential Effect
The formula covers both measures that directly affect trade and those whose effect only indirectly or potentially restricts the movement of goods. In this way, the Dassonville Formula has an exceptionally broad scope of application.
Typical Examples of Application
Certificates of Origin and Other Certificates
As addressed in the Dassonville judgment, requirements for proof of origin or other certificates regularly fall under the Dassonville Formula if they hinder or have the potential to hinder intra-Community trade.
Packaging and Labeling Regulations
Regulations stipulating differing standards for domestic and foreign goods may be classified as measures having equivalent effect if they make trade between Member States more difficult.
Import or Export Restrictions and Quotas
Quantity limitations that do not explicitly refer to the origin of the goods also fall within the definition of the Dassonville Formula if they result in the obstruction of the internal market.
Limits of the Dassonville Formula
Keck Formula and Differentiation
Due to the broadness of the Dassonville Formula, the CJEU found it necessary in subsequent case law, especially with the Keck judgment (CJEU, Cases C-267/91 and C-268/91), to restrict the concept of measures having equivalent effect. Since then, a distinction is made between product requirements (product-related rules) and selling arrangements. Pure selling arrangements do not fall under the Dassonville Formula as long as they apply equally to all market participants.
Legitimacy under Article 36 TFEU
Even measures that qualify as measures having equivalent effect under the Dassonville Formula may exceptionally be justified under certain circumstances specified in Article 36 TFEU (e.g., protection of health and life of humans, animals or plants; protection of national treasures).
Impacts and Significance of the Dassonville Formula
The Dassonville Formula has laid the foundation for a comprehensive and effective system to identify and eliminate market barriers in the European internal market. It ensures a high level of protection and liberalization in the movement of goods by also capturing less obvious or indirectly effective barriers to trade. The formula remains of fundamental significance in legal practice and academic circles for interpreting the free movement of goods.
Summary
Die Dassonville Formula has significantly shaped the image of European internal market law. Its broad definition, capturing measures having equivalent effect to quantitative restrictions, ensures comprehensive protection against trade barriers within the EU. The formula remains central for reviewing national provisions under the fundamental freedoms of the TFEU, even though later case law introduced differentiation through the Keck Formula. The handling of the Dassonville Formula continues to be a central element for promoting and safeguarding the free movement of goods in the European Union.
Frequently Asked Questions
When does the Dassonville Formula apply in the context of European internal market law?
The Dassonville Formula is primarily applied in connection with Article 34 TFEU (formerly Article 28 EC), which prohibits quantitative import restrictions as well as measures having equivalent effect between EU Member States. It serves to determine which national provisions or practices of Member States qualify as measures having equivalent effect (measures equivalent to quantitative restrictions). The formula comes into play whenever it must be checked whether a government measure restricts the free movement of goods, even if it does not explicitly aim to restrict imports. It is irrelevant whether the measure directly or indirectly, actually or potentially, hinders trade between the Member States.
What is the significance of the Dassonville Formula for assessing indirect trade barriers?
The Dassonville Formula is highly significant for assessing indirect trade barriers, as it sets a very broad standard for determining the existence of an impermissible restriction on the free movement of goods. It states that all rules of the Member States which are capable of hindering intra-EU trade directly or indirectly, in fact or potentially, must be treated as measures having equivalent effect to quantitative restrictions. Thus, even such state actions and regulations fall within its scope that have only indirect or potential influence on trade between EU Member States. The formula thus provides comprehensive protection for the free movement of goods from all conceivable trade barriers.
How does the Dassonville Formula differ from other EU legal assessment standards?
In European internal market law, the Keck jurisprudence is distinguished alongside the Dassonville Formula. While the Dassonville Formula provides a very broad interpretation of the concept of a measure having equivalent effect and can in principle capture any national trade rule, the Keck jurisprudence narrows this broad application area by introducing a distinction between product-related provisions and sales-related provisions (selling arrangements). According to Keck, non-discriminatory selling arrangements are generally not covered by Article 34 TFEU. The Dassonville Formula thus forms the starting point for assessment; a distinction from Keck is made in a further step of the analysis to determine whether a measure actually falls under the strict prohibition of Article 34 TFEU.
What is the significance of the Dassonville Formula for legal protection before national courts?
For access to effective legal protection before national courts, the Dassonville Formula plays a central role as it provides claimants with a low-threshold means to challenge government measures for compliance with European law. Since almost every national regulation that is capable of hindering intra-Community trade—even indirectly or potentially—falls under the Dassonville Formula, individuals and companies can bring cases before national courts and invoke a breach of Article 34 TFEU. This ensures comprehensive legal protection against national trade barriers, regardless of whether there are intentional discriminatory motives or actual hindrances to trade.
What role does the Dassonville Formula play in justifying national measures?
After applying the Dassonville Formula and determining a restriction, the question arises as to whether the affected national measure is justified. To this end, Union law allows, pursuant to Article 36 TFEU, certain explicitly listed exceptions (e.g., protection of public order, health and life of humans), as well as unwritten mandatory requirements of general interest (e.g., environmental protection, consumer protection) according to the Cassis de Dijon jurisprudence. The Dassonville Formula initially captures all measures having equivalent effect, whereas the justification is examined based on these rules thereafter. The principle of proportionality must always be observed when assessing justification; that is, the national measure must not restrict the Union-protected objective more than necessary.
How is the Dassonville Formula applied in relation to private actions?
In general, the Dassonville Formula is applied to state measures, not to actions by private individuals. However, in specific cases, private measures may be indirectly covered, for example, if the state tolerates or supports private trade practices so that they have a state character. Thus, state inactivity toward private trade barriers may, under certain circumstances, be considered a breach of Article 34 TFEU if it perpetuates a situation that is contrary to Union law. The Dassonville Formula thus remains primarily limited to public actors, but also has relevance in so-called ‘indirect private law’ situations.
What criticisms have been raised regarding the application of the Dassonville Formula?
The extremely broad interpretation of the Dassonville Formula has been criticized both in academic literature and case law. It has been argued that practically any measure affecting the movement of goods could be declared a restriction. As a result, uncertainties and planning insecurities increase for Member States, since any regulation—even one serving legitimate public interests—could potentially be classified as a trade barrier and trigger a requirement for justification. This overextension of the scope ultimately led to the ‘correction’ by the Keck decision in order to provide a better balance for the internal market process and the principle of subsidiarity.
