What is the difference between a quantitative restriction and a distinctly applicable MEQR in EU law?

Answer 1

Both are terms derived from Articles 34 and 35 of the Treaty on the Functioning of the European Union. The definitions overlap to some degree.

In Geddo the (as it then was) European Court of Justice defined a quantitative restriction as a "total or partial restraint on imports, exports or goods in transit". Therefore, the defining aspect of a quantitative restriction is that it operates on the moment of import. For example, in the Swedish Alcohol Monopoly case, in which a) imports were restricted to licensed wholesalers (although application for other beverages could be made to the Board, which they would grant unless there were grounds to preclude) and b) he tsale of alcohol was confined to a state run company, the court held that the measures DID constitute a quantitative restriction. (other examples are ANETT, Hedley Lomas and Rosengren).

This can be contrasted with MEQRs (Measures having equivalent effect), a phrase also found in articles 34 & 35 of the TFEU. These are more complicated and have a much different legal framework. In short all trading rules that either actually or potentially may interfere with the free movement of goods in the union can be considered measures having equivalent effect (Dassonville).

The legal framework for the latter type depends on the determination of the following factors: whether the measure is distinctly (Dassonville; UHT Milk; Commission v Ireland) or indistinctly (Cassis de Dijon; Mars; Commission v Germany - Beer purity) applicable. Distinctly = Applies only to imported goods. Indistinctly = applies to both domestic and imported goods. Under the Cassis approach, rules relating specifically to the composition of the product may constitute an MEQR.

Importantly, identifying a problem does not necessarily mean that the member state is in violation of its EU law obligations, it may seek to justify its actions in accordance with the principle of proportionality. Again this is subject to the prior determinations made. Distinctly applicable measures (those only applying to imports/exports) can only be justified by reference to Article 36 of the TFEU, such considerations are exhaustive and no other factors may be taken into consideration. Indistinctly applicable measures on the other hand can be justified by a wider range of judicially created, and so called, Mandatory Requirements (MR). Those created so far include: Protection of public health, consumer protection, environmental protection, preservation of national culture, fairness of commercial transactions and fiscal supervision.

The court has qualified the scope of Article 34 so as to not include selling arrangements (Keck), and so the prior artificial reliance on justification is obviated (Stock on Trent CC v B & Q; Cinethequ). However Keck was not a plethora, measures may still be caught within Article 34 if they a) apply to both domestic and imported measures and b) the measure does not in law or in fact discriminate against the marketing of domestic or imported goods.

Hope this helps