Chapter 3 Flashcards

Question

Application of Mandatory Requirements

Answer 1

Walter Rau Lebensmittelwerke - Belgian cubic margarine - made the sale of imported margarine more difficult by requiring producers from other Member States to package their margarine in special packs just to sell it in Belgium Consumer protection? Necessary to prevent confusion Legitimate But Disproportionate Could be protected through labels etc Commission v Italy - Cocoa Products - an Italian law that required cocoa and chocolate products containing vegetable fats other than cocoa butter had to be sold as ‘chocolate substitute’. consumer protection disproportionate

Answer 2

Cassis de Djon - protection of Public Health - Defence of consumer - the effectiveness of fiscal supervision, - the fairness of commercial transactions and ``` MORE: protection of cultural activities - Cinéthèque environmeny - Commission v Denmark - disposable beer cans freedom of expression - Schmidberger ```

Answer 3

Attempt to derogate under Article 36 Public Morality by UK - porn - successful

Answer 4

Attempt to derogate under Article 36 Public Morality - love dolls - unsuccessful

Answer 5

Attempt to derogate under Article 36 Public Policy - Ban on the exports of silver coins to prevent them being melted - Justified as Fundamental interest of the State - equivalent ban in the UK

Answer 6

Attempt to derogate under Article 36 Public Security - the only oil refinery in Ireland had been acquired by the Irish State - An order was made by the Irish Minister for Industry and Energy requiring importers of petroleum products to buy at least 35% of their total requirements from the State-owned oil refinery at prices which the Irish government fixed on the basis of the costs incurred in the operation of the refinery. - The Court of Justice held that this was an MEQR - accepted that the restriction was capable of being justified on the grounds of public security - petroleum products are of fundamental importance for the existence of the State since its institutions, its essential public services and even the survival of its inhabitants depend on them.

Answer 7

- Greek law gave the Greek Attempt to derogate under Article 36 Public Security State the exclusive right to import and to refine petroleum products. - The Court found that Greece had failed to prove that the public-sector refineries would be unable to dispose of their products on the market at competitive prices without these measures. - The measures were unnecessary and, therefore, disproportionate as a result.

Answer 8

Attempt to derogate under Article 36 Public Security - sold petrol at prices below the minimum price set by French law. - The Court of Justice accepted Leclerc’s argument that the way that the minimum price was calculated infringed Article 34 as it cancelled out any competitive advantage that imported petrol would have over petrol refined in France - justified on the grounds of public policy and public security by reason of the threat to public order and security which would result if local retailers were faced with unrestricted competition - French gvt had not proven that it would not be able to deal with these threats

Answer 9

Attempt to derogate under Article 36 Protection of human, animals - derogation to justify a general ban on additives in beer failed - the ban covered additives used in other Member States which had not been proven to pose a threat to public health. - The ban was disproportionate as a result as it had not been proven to be necessary.

Answer 10

Attempt to derogate under Article 36 Protection of human, animals - a ban in the Netherlands on selling foods containing vitamins — specifically muesli bars in this case — without authorisation was justified where the excessive consumption of vitamins was harmful - but scientific evidence had not been able to determine which sufficient certainty the precise quantities at which they became harmful. - left to courts

Answer 11

Attempt to derogate under Article 36 Protection of human, animals - Said they wanted to control Newcastle disease in poultry - The real reason was to protect British importers - Christmas season - disguised trade restriction

Answer 12

Attempt to derogate under Article 36 Protection of human, animals - a prohibition on keeping any bees except the Læsø brown bee on the island of Læsø was held to be justified under the derogation as its purpose was to preserve the Læsø brown bee. - This was an indigenous animal population with distinct characteristics which was under genuine threat of disappearing. - The ban contributed to the maintenance of biodiversity by ensuring the survival of its population.

Answer 13

Attempt to derogate under Article 36 Protection of human, animals Opened up the derogation to Wider environmental protection - German legislation requiring electricity distribution undertakings to purchase electricity produced from renewable energy sources - legislative policy was justified as it was designed to protect the health and life of humans, animals and plants. - Moreover, Article 6 of the EC Treaty (now Article 11 of the TFEU) required environmental protection to be integrated into the definition and implementation of other Community policies.

Answer 14

Belgian argument of Mandatory requirement: consumer protection ``` Belgian margarine Had to be cubic packs More expensive consumer protection - prevent confusion consumer protection - legit justification but not proportionate as could just label ```

Answer 15

argument of Mandatory requirement - This concerned an Italian law that required cocoa and chocolate products containing vegetable fats other than cocoa butter had to be sold as ‘chocolate substitute’. - MEQR - foreign manufacturers had to use a different sales name on the packaging to their MS - additional packaging costs Also the word ‘substitute’

Answer 16

mandatory requirement of Protection of cultural activities - a French law which banned the sale or hire of videos of films during the first year of their release was held to be capable of being justified as being necessary to encourage the French public to go to the cinema and protect the profitability of cinematographic production. - Both domestic and imported - Proportionate means of achieving the objective

Answer 17

Mandatory requirement protecting the environment - laws that required drinks to be produced in standard size containers for recycling were justified on the basis that they proportionally met the objective of protecting the environment

Answer 18

Mandatory requirement of citizens’ fundamental freedom of expression and assembly the Austrian government was the first Member State government to use protection of fundamental rights as a justification for restricting a Treaty freedom when it allowed a one-day environmental demonstration to temporarily close the Brenner motorway. This was a major trade route through Austria.

Answer 19

How you sell it Criminal Proceedings Against Oosthoek - Dutch law prohibited free gifts being offered or provided within a commercial activity - may reduce the volume of imports - Such legislation may thereby act as an obstacle to the free movement of goods and so may constitute an MEQR. - could be justified on the grounds of consumer protection and fair trading Cinetheque - MEQR as hindered the importation of videos from other MSs - justified on basis of mandatory requirement B&Q - shops closed on Sunday - B&Q’s defence was that the Sunday trading rules was an MEQR prohibited by Article 34. The Court of Justice held that it was an MEQR because, by preventing goods from being sold on a Sunday, it impeded imports from other Member States as less would be sold. - justified on socio-economic grounds Stoke-on-Trent - reaffirmed that the Sunday hours were MEQRs - proportionate restriction on socioeconomic grounds Heavily criticised decisions because.. - no dual burden These were pre-Keck

Answer 20

- prosecution of supermarkets for selling goods at a loss - said law contravened article 34 - indistinctly applicable MEQR - intention to clarify and reexamine its case law about MEQR They said... selling arrangements would no longer be considered to be MEQRs so long as they fulfilled these two requirements: 1. They apply to all affected traders operating within the national territory 2. The affect in the same manner of law and in fact the marketing of domestic and imported products -- this case DID comply with the two requirements - so not an MEQR This is the Keck Test

Answer 21

Criminal Proceedings Against Tankstation - closure of all petrol stations - applied to all traders - outside of Article 34 Punto Casa - sunday trading rules - under Keck, they did not fall within Article 34 in the first place Herbert Karner - advert that goods came from insolvent estate - contrary to an Austrian ban on announcements merely prohibited adverts in which a large number of people are targeted and only of the fact that the goods were previously from an insolvent estate. It did not prohibit other adverts relating to the goods and it did not affect imported goods any more than it affected domestic goods. Keck itself

Answer 22

Examples of Product Requirements: Mars - sales promo - 10% larger than the usual size - Mars - prohibition on it selling the ice cream was an MEQR CoJ - a product requirement - the manufacturers would have to change the wrappers and incur additional costs Familiapress - Austrian unfair competition act prohibited the sale of newspapers which had competitions giving big money prizes German magazine sold in Austria - crossword puzzle - Sad prohibition was a selling arrangement because competitions were merely a method of sales promotion Coj - a product requirement - the restriction would require the contents of the magazine to be altered Prohibition was an MEQR - left to the court

Answer 23

‘Any legal provision of a Member State prohibiting goods which have not been previously authorised from being marketed, acquired, offered, put on display or sale, kept, prepared, transported, sold, disposed of for valuable consideration or free of charge, imported or used, constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article [34 TFEU].’

Answer 24

MEQRs are ANY measures that hinder the access of the market of another MS Prohibition on the use of motorcycles to tow trailers on roads in Italy was a restriction on the free movement of trailers designed for motorcycles. - consumers would have no interest in buying them as a result of the prohibition and so it hindered their access to the market. - Justified on the ground of the need to ensure road safety. Backed up by Roos - jet ski trailers - limited use - so consumers will not want to buy them - justified on environmental (MR + 36) Raad

Answer 25

Libro - minimum prices for imported German language books - part of the law only applied to imports - so was an MEQR - failed the Keck test - tried to rely on article 36 - national treasures - failed - tried to rely on MR - cultural objects - failed ``` Advertising: Agostini Swedish ban on TV advertising - satisfied the 1st requirement of Keck - 2nd may not have been satisfied - did NOT affect all readers in the same manner Left it to the national courts ``` Gourmet International Products - banning of alcoholic drinks on radio - impeded access by foreign producers more - MEQR

Answer 26

R v Thompson - silver coins Hedley Lomas - refusal to export licenses

Answer 27

Les Sieurs

Answer 28

Very reluctant to say so Vee en Vlees Gysbrechts

Answer 29

Mandatory Requirements only justify indistinctly applicable MEQRs

Chapter 3 Flashcards

(53 cards)