FMG - Non-fiscal barriers

Question 1

Geddo

Answer 1

Measures which amount to a total or partial restraint…of imports, exports, or goods in transit

Question 2

Henn & Darby

Answer 2

restriction of hardcore pornography acceptable as not widely available in UK. Justified on moral derogation

Question 3

Article 34

Answer 3

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states

Question 4

Directive 70/50

Answer 4

No longer in operation, but shows understanding of MEQRs. 2 categories distinctly and indistinctly applicable MEQrs; distinct (restriction on basis of origin) indistinct (restriction which has the effect of disadvantaging imported products)

Question 5

Dassonville

Answer 5

Definition of MEQR -‘All trading rules enacted by member states which are capable of hindering , directly or indirectly, actually or potentially, intra-community trade’

Question 6

Firma Denkavit

Answer 6

Imported goods should be inspected. Restricted imported goods, therefore contravenes article 34

Question 7

Buy Irish Case

Answer 7

Promoted Irish goods above imported goods, so has protectionist effect, and breaches art 34

Question 8

Comm v Ireland (Irish Souvenirs)

Answer 8

Made law that Irish souvenirs had to say where they were from and print on the product foreign if not made in ireland. MEQR distinct, breaches art 34

Question 9

Dassonville

Answer 9

Belgian requirement for certificate of origin for Scottish whiskey was indistinctly applicable MEQR

Question 10

Commision v Ireland (pipe size)

Answer 10

Ireland prescribed that pipes had to be certain size. No justification behind this, just certain pipe specification manufactured in Ireland. Therefore beneficial to domestic products.

Question 11

Article 36

Answer 11

derogations against article 34 - Public morality Public policy Public security The protection of health and life of humans, plants or animals Protection of national treasures (artistic, historic or archaeological) Protection of industrial and commercial property

Question 12

Conegate

Answer 12

Tried to prohibit the importation of blow up love dolls on public morality grounds. Not applicable as manufactured its own

Question 13

R v Thompson

Answer 13

Uk banned export of silver coins on basis of devaluation of the mint

Question 14

Cullet v Leclerc

Answer 14

• leclerc tried to sell petrol at supermarkets at discounted rate. Contravened French law, leclerc took law to CJ who ruled it was protectionist as it stopped importers from joining market. Public policy excuse failed as claimed ‘rioting in streets’…no.

Question 15

Campus Oil

Answer 15

Irish law that when oil imported required to buy 35% from state owned refinery, as Ireland has no own oil source so issue of national security to have a store of oil

Question 16

Commission v Germany

Answer 16

Refused to import beer which claimed had long term negative health effects. CJ ruled inconclusive scientific evidence, therefore no sufficient health risk

Question 17

Santos

Answer 17

Dutch refused to import museli bar with added vitamins on grounds of negative health implications. CJ ruled that Dutch restriction was justified as dirth of evidence against victims.

Question 18

Commission v UK (Turkeys)

Answer 18

UK banned French turkey, on grounds of public health, newcastles disease. Not sufficient evidence. Reaction to BSE ban

Question 19

Bluhme

Answer 19

Bee strain only allowed to be kept on ecological grounds

Question 20

C v Netherlands

Answer 20

Blanket ban on fortified foods was disproportionate, must be made on case by case basis.

Question 21

Cassis de Dijon

Answer 21

Germany had set minimum alcohol content of 25% Cassis de Dijon contravened this. Indistinct MEQR. Not allowed as presumption of mutual recognition applies.

Question 22

Mars

Answer 22

Mars with 10% extra printed on side permitted in MS countries. Germans complained as packaging bigger than product, therefore deceptive. No as PMR

Question 23

Commission v Italy (Cocoa)

Answer 23

Tried to require UK chocolate to be relabelled chocolate substitute. Not permitted as not necessary in other countries therefore PMR. Tried to argue against PMR on grounds of consumer protection under mandatory requirements.

Question 24

Mandatory requirements

Answer 24

Otherwise known as the rule of reason. Only applies to MEQR (not barrier to trade by origin but by effect)

Question 25

Eligible mandatory requirementsq

Answer 25

 Effectiveness of fiscal supervision
 Protection of public health
 Fairness of commercial transactions
 Defence of the consumer
 Protection of cultural activities (Cinetheque)
 Protection of the environment (Commission v Denmark disposable beer can)
 Protection of fundamental rights (Schmidberger)

Question 26

Selling arrangements

Answer 26

A measure affecting the way in which a product is sold, not the product itself (Keck & MIthouard)

Question 27

MEQR

Answer 27

Measure equivalent to a quantitative restriction

Question 28

QR

Answer 28

Quantitative restriction

Question 29

Torfen BCv B & Q

Answer 29

Trading began in 1990s on Sunday. This broke UK law regarding Sunday trading. Sunday trading rules break free movement of goods law

Question 30

Stoke-on-Trent v B & Q

Answer 30

Sunday trading rules are a selling arrangement not an MEQR as they do not affect the product, they affect the way it is sold.

Question 31

Keck and Mithouard

Answer 31

was a French case regarding selling products at a loss. Argued it was a MEQR as stopped introduction of new imported products promotion. Court developed rule that article 34 will only apply to product requirements, not to selling arrangements provided the selling arrangements meet these 2 requirements;
o Apply to all affected traders operating within the national territory
o Affect in the same manner in law and in fact domestic and imported products.
o Therefore selling at loss allowed

Question 32

De agostini

Answer 32

Swedish rule banned advertising to children on TV. Argument was that this didn’t meet the requirement that selling arrangements must affect domestic and imported products equally as imported products would find it very difficult to break into the market without TV advertising. Therefore judged to be discriminatory and fall within ambit of Article 34 TFEU.

Question 33

Gourmet international products

Answer 33

Swedish restrictions on alcohol sale. Held to affect new imported products more than domestic products so indistinctly applied MEQR. Sweden argued public health derogation under article 36, left to Swedish courts to judge.

Question 34

Fachverband v LIBRO

Answer 34

Austrian law setting minimum price for German language books. Treated as MEQR as law priced imported books differently to domestic books. Argument of cultural asset failed as did ‘overriding public interest argument’.

Question 35

Article 35

Answer 35

mirror image of article 34 but is for exports rather than imports. - However an indistinctly applicable MEQR will not breach article 35

Question 36

Groenveld BV

Answer 36

Article 35 only applies to distinctly applicable MEQRs not indistinctly applicable MEQRs

Question 37

Vereinigte Familiapress

Answer 37

German companies sold crossword puzzles with prizes in Austria. Falls under art 34 as means German magazine have to change product, so not equal application in fact, therefore caught by art 34

Question 38

R v Royal Pharmaceutical Society of GB

Answer 38

Prohibits certain over the counter drugs, is public body so must be careful not to restrict trade.

Question 39

What justification are there of distinct MEQRs?

Answer 39

Only article 36

Question 40

What restrictions are there on the derogations?

Answer 40

Proportionate and not arbitrary

Question 41

What 2 rules were established in Cassis De Dijon?

Answer 41

Rule of reason (mandatory requirements)

Presumption of mutual recognition

Question 42

What justifications are there of indistinct MEQRs?

Answer 42

Art 36 and Cassiss be Dijon (Presumption of mutual recognition and rule of reason)