Article 28 E.C. And Rules on Use: A Step Towards a Workable Doctrine on Measures Having Equivalent Effect to Quantitative Restrictions

Abstract

The ECJ's decision in the Mickelsson case (C-142/05) brings attention to a little discussed dimension of the already sufficiently complicated topic of the correct application of Article 28 EC; the fact that rules on use can constitute MEQR’s. Rules on use, here defined as national measures regulating how, when, where or by whom a certain product may be used, does not fit the traditional dichotomy, established in Keck, of product rules and selling arrangements. This article examines the case law of the ECJ regarding rules on use, with particular emphasis on the above mentioned Mickelsson case as well as the case Commission v Italy (C-110/05). We argue that the consequences of these cases are considerable, not only for the issue of rules on use but also for the general doctrine of MEQR’s. The ECJ has taken a significant step towards simplifying the application of Article 28, but many issues remain to be clarified.

Keywords: EU law, free movement of goods, MEQR, rules on use, jet ski, proportionality