Blurring the boundaries of the free movement of goods: opinion of advocate general Slynn in Cinéthèque

Article 34 TFEU (Article 30 EEC, when this case was decided) prohibits quantitative restrictions on import (ie bans or quotas) and measures having equivalent effect on quantitative restrictions on imports. The latter concept was, and is, not defined in the EU Treaties, so that it fell upon the Court to determine which rules Article 34 TFEU caught. As it is all too well known, the Court did so in the Dassonville case, clarifying that all measures which directly or indirectly, actually or potentially, affect intra-Community trade are measures having equivalent effect for the purposes of Article 34 TFEU. In the subsequent case of Cassis de Dijon, the Court further clarified the ambit of application of the Treaty free movement of goods provisions. Cinéthèque, a precursor to the ‘Sunday Trading’ cases, is important (if often overlooked) exactly for this reason: it signalled the first step towards a broad and indiscriminate interpretation of the notion of measure having equivalent effect to a restriction on imports. It is because of the interpretation given by the Court in Cinéthèque that traders were able to attack rules that merely regulated ‘how and when’ goods could be sold, with the consequent confusion about the boundaries of the free movement of goods provisions in the EU Treaties.