EU Law - FMG Derogations Flashcards Preview

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Flashcards in EU Law - FMG Derogations Deck (148):
1

Protection of working environment MR

Oebel

2

Omega Spielhallen judgment

MR on human dignity - allowed to pursue MR underpinned by a societal interest unique to the Member

3

what is the suitability test of proportionality?

Rational relationship between measure and objective

4

Denkavit

Second set of checks on imports may be lawful is necessary and proportionate

5

Campus Oil v Minister for Industry and Energy judgment

Would not have been accepted if Community rules had provided necessary protection for oil suppliers

6

Weatherill and Beaumont on Cassis

The Cassis MR test favours a deregulated free market economy as opposed to protecting national rules

7

Commission v Germany 1987

Beer purity laws

8

What case showed it is legitimate to say an outright ban on a demo was too restrictive on FMG?

Schmidberger v Republic of Austria

9

Who rejected the argument in Cullet v Centre Leclerc on the facts?

ECJ

10

When are dual checks unlawful and according to what case?

If unnecessarily imposed as technical tests already done in state of origin: Biologische Producten

11

Commission v Austria [2005] general

Heavy lorries, banned from road

12

Why is cost-benefit balancing more intrusive?

Compares extent of restriction and consequent furtherance of a societal objective

13

Commission v Germany on proportionality general

Hospital supplies

14

Commission v Belgium 1992 judgment

Allow environmental protection as a justification, BUT found not to be discriminatory because of special nature of subject matter, so technically MR

15

What was the effect of Cassis on regulatory competence of members?

Took such regulatory competence and transferred it to the EU through Article 114 EU

16

Who does the burden of proof lie with under Article 36?

Member

17

Commssion v UK 1983 judgment

scepticism over the legality of second checks for Article 36

18

What two cases show Article 36 on public morality?

Henn and Derby; Conegate v Commissioners of Customs and Excise

19

Commission v Austria [2005] judgment

Debatable if indistinctly applicable or indirectly discriminatory, but assumed IDA so again no clear exemption

20

Commission v Netherlands [2004] judgment

Mere hypothetical risk founded on conjecture not allowed for protective measures

21

Why did they argue it was 'vital' for 35% of petrol imported to be bought from Ireland?

To maintain Irish oil-refining capacity

22

What case shows labelling requirements can be found to breach Article 34?

Fietje

23

What case shows Article 36 on public policy?

Cullet v Centre Leclerc

24

Why is the balancing exercise between market integration and attainment of societal goals for MRs a problem?

Can be hard to deal with complex empirical and normative issues, and to pick which outweighs the other

25

Essent v Belgium general

AGBot called for MR extension to DA rules

26

what do Craig and De Burca argue in regard to Article 36?

Broader interpretation of Article 36 categories, e.g. consumer protection and environment under number 3

27

Name at least two cases on protection of health and life under Article 36

Commission v UK (Newcastle); Officer van Justitie v Sandoz; Dankavit; Commission v UK (UHT); Biologische Production

28

What features do Article 36 and MRs share?

Substantive overlap (public health), proportionality, precautionary principles and value diversity between Members

29

Foie Gras case on MRs

Obligation to insert MR clauses in legislation itself when imposing PRs, unless Article 36 justification

30

What are the two derogations of Article 34?

Article 36 and mandatory requirements

31

Who rejected the argument in Cullet v Centre Leclerc on principle?

AG Verloren

32

On what basis the ECJ reject the argument in Cullet v Centre Leclerc?

On facts - not shown it would have consequences for law and order

33

Schmidberger v Republic of Austria general

Route blocked by demo, authorised.

34

Commission v Netherlands [2004] general

Vitamins, excess

35

Familiapress on MR

Maintenance of plurality of the press MR

36

Name at least three problems with Cassis MR strategy?

MR is not always effective, dependent upon agreement of outcome of adjudicative process, balancing exercise between market integration and societal goals can be difficult, balance between market integration and protection function by national rules can be affected and allocation of regulatory competence between EU and Members

37

What shows that MRs are not always effective?

Commission's Paper on MR called for increased monitoring of MR

38

Regulation (EC) No.764/2008

Justifications under Article 36 are also subject to the conditions set out therein

39

Maintenance of plurality of the press MR

Familiapress

40

L&O on Commission v Germany [1987]

Questioned if labelling really achieved the same level of protection

41

Who questioned if labelling in Commission v Germany really achieved the same level of protection?

L&O

42

what case suggested second checks may be allowed under protection of health and life article 36?

Denkavit

43

Henn & Derby on diversity

Each Member determines its own 'scale of values' and 'requirements of public morality'

44

Criminal Proceedings against Van der Laan

EU harmonisation can make it impossible to rely on an MR depending on minimum/total harmonisation

45

Commission v Austria [2011] judgment

Need proof Member had examined less trade restrictive alternatives and discounted them only if unable to achieve desired level of protection

46

What does Weatherill argue about disagreement between when MRs should have saved the relevant national law?

ECJ have given relatively little attention to prospects of consumer confusion, usually catching food standards within Article 34

47

What do MRs ensure?

Members can defend dual regulatory burden if justification outweighs pursuit of a common, single, internal market

48

Each Member determines its own 'scale of values' and 'requirements of public morality'

Henn & Derby

49

On what basis did AG Verloren reject the argument in Cullet v Centre Leclerc?

On principle - would allow private interest groups to determine the scope of freedoms

50

Schmidberger v Republic of Austria judgment

Broad margin of discretion - satisfied because no alternative to satisfy same level of protection, and legitimate to say outright ban on demo was too restrictive on FMG

51

What are the four applications of proportionality?

Suitability, least trade restrictive means, cost-benefit balancing and proceduralisation

52

In what area is there overlap between MRs and Article 36?

Public health

53

Officer van Justitie v Sandoz judgment

Special attention to factual basis for protection of health and life under Article 36, but where there is uncertainty Member can decide on protection degree

54

Fiejte general

Certain name on label

55

How did KO v De Agostini attempt to resolve the confusion introduced by Keck in regard to substantive overlap?

Measure under Article 34 can be justified by EITHER Article 36 or an MR

56

What Article of what Treaty enshrines the precautionary principles?

Article 191 TFEU

57

Commission v Germany on proportionality judgment

Member has power to decide degree of protection afforded and the manner in which they achieve that level

58

Was the list in Cassis of MR exhaustive?

No

59

What case showed that where in-depth analysis is impossible, the precautionary principle allows protective measures to be adopted?

Commission v Netherlands [2004]

60

Aher-Waggon on availability of justifications

IDA and DA distinction can be hard so ECJ may characterise as within Cassis to allow MR justification

61

Purely economic objective might count in so far as it contributes to attainment of high-level of protection

Commission v Germany Hospital

62

What cases suggests ECJ may characterise a measure as IDA to allow MR justification when DA/IDA distinction is too hard?

Aher-Waggon

63

what year was the danish beer bottles case?

1988

64

What is the 'rule of reason' and according to who?

A general principle of interpretation according to AG VerLoren

65

Name the four derogations under Article 36

Public morality/policy/security; protection of health/life of humans/animals/plants; protection of national treasures possessing artistic/historic value and; protection of industrial and commercial property

66

what was the effect of Cassis on the Commission?

Caused them to reorient their legislative programme

67

Name at least two cases showing acceptance of MR justifications?

Oebel; Cinetheque; Familiapress

68

Measure under Article 34 can be justified by EITHER Article 36 or an MR

KO v De Agostini

69

what case showed EU harmonisation can make it impossible to rely on an MR depending on minimum/total harmonisation?

Criminal Proceedings against Van der Laan

70

What four MRs did they point to in Cassis?

Effectiveness of fiscal supervision, protection of public health, fairness of commercial transactions and defence of the consumer

71

Cinema as a form of cultural expression MR

Cinetheque

72

Where was the list of MR set down?

Cassis de Dijon

73

KO v De Agostini on Article 36 and harmonisation

Community Directives only partially harmonised relevant law, so national rules applied

74

Commission v Denmark judgment on proportionality

Additional measure was not least trade restrictive and could not justify high degree of FMG restriction

75

Biologische Producten general

Dual checks

76

What case showed a Member can pursue an MR underpinned by a societal interest unique to them?

Omega Spielhallen

77

Heavy lorries, air quality

Commission v Austria [2011]

78

Fietje judgment

Shows even labelling requirements can be found to breach Article 34, if label required to be changed contains same info as required by state import, and just as understandable

79

What year was the heavy lorries, air quality case?

2011

80

What approach does the ECJ take to Article 36?

Narrow approach - public morality hardly ever relied upon

81

What are the two overarching difference between the two derogations?

Substantive and their availability

82

what articles are relevant for public security and Article 36?

Article 346 - 348 TFEU

83

Commission v Germany [1998] general

Uncastrated male pigs

84

Omega Spielhallen general

Laser drone game prohibited

85

In what two ways did the Commission reorient their legislative programme after Cassis?

Tackle inadmissible trade rules through Article 258 TFEU and harmonisation directed towards rules still admissible under Cassis

86

Campus Oil v Minister for Industry and Energy

35% requirements by petrol importers need to be bought from state - 'vital'

87

What does Article 36 not allow under it?

Arbitrary discrimination or disguised restriction

88

How did the CJEU reject AG Bot implicitly in Essent v Belgium?

Called the measure an MEE (not DA or IDA) and allowed environmental protection

89

Article 191 TFEU

Applies to environmental protection but also national security and public health - protective measures even with scientific uncertainty

90

Name two cases on least trade restrictive means proportionality test

Commission v Denmark; Commission v Germany

91

Commission v Denmark general on proportionality

Danish beer bottles case - above a certain volume threshold

92

Conegate v Commissioners of Customs and Excise JUDGMENT

For the Member to decide upon the nature of public morality, but the lack of a ban on domestic products removed Article 36 defence

93

Preussen Elektra

AG Jacobs questioned if Article 36 really is exhaustive, arguing for relaxation between Article 36 and MR

94

Why is Commission v Belgium 1992 technically not an exception to the fact that Article 36 is limited to that set down therein?

They found the measure not to be discriminatory because of special nature of subject matter

95

Moorman on harmonisation and Article 36

Harmonisation for poultry health inspections were total so no justifications under Article 36

96

What could it be better to call MRs?

'Imperative public policy requirements'

97

Essent v Belgium general

Electricity from renewable sources within Belgium

98

Commission v UK 1984 general

Newcastle disease

99

Why are MRs broader than Article 36?

Article 36 involves discriminatory measures striking at the heart of the EU

100

What case gave an obligation to insert MR clauses in legislation itself when imposing PRs, unless Article 36 justification?

Foie Gras

101

Moorman general

Poultry health inspections

102

Commission v Germany [1987]

Less restrictive measure could have been adopted through the label

103

What is broader, MRs or Article 36?

MRs

104

What year was the Commission v Netherlands case on excess vitamins?

2004

105

Cinetheque on MR

Cinema as a form of cultural expression MR

106

Omega Spielhallen was a what kind of case?

FMS

107

What principle do MRs extend and from which case?

'Rule of reason' from Dassonville

108

Commission v Germany [1998] judgment

Harmonising measure prevented G from applying a different measures

109

What are justifications under article 36 also subject to?

Conditions in Regulation (EC) No.764/2008

110

What other grounds are there for validating discriminatory measures under Article 36, MAYBE, and according to what case?

Environment: Commission v Belgium 1992

111

What case shows a broad margin of discretion when considering least trade restrictive means?

Schmidberger v Republic of Austria

112

How did Keck confuse substantive overlap between Article 36 and MR?

Justifications for discriminatory SAs under Article 34 may only fall under an MR

113

Commission v Germany [1987] on cost-benefit balancing

'Proportionate to the aim in view'

114

What AG and in what case argued for relaxation between Articld 36 and MR?

AG Jacobs in Preussen Elektra

115

Commission v Germany [1987] on least trade restrictive means

Not least trade restrictive as could have required list of ingredients

116

Cullet v Centre Leclerc general

Minimum fuel retail price fixed on French refinery prices

117

what case gives an example of where total harmonisation prohibited Article 36 justification?

Moorman OR Commission v Germany [1998]

118

Commission v UK 1983 general

UHT milk, second checks

119

Commission v Germany Hospital on cost-benefit balancing

Purely economic objective might count in so far as it contributes to attainment of high-level of protection

120

what year was the beer purity case

1987

121

Henn and Derby on Article 36 general

UK ban on importation of pornography, but allowed possession

122

Conegate v Commissioners of Customs and Excise general

Life-sized dolls

123

Culler v Centre Leclerc judgment

Rejected argument that there would be civil disturbances without fixing fuel price

124

articles 346 - 348 TFEU

Ability to take certain national security measures

125

What do Craig and De Burca note about the wording of Article 36?

Might preclude the removal of IDA/DA distinction

126

What happens in the case of Public Health as a justification?

Needs to satisfy both Article 36 and MR, especially when unclear if rule is discriminatory or IDA

127

Commission v Austria [2011] general

Heavy lorries, air quality

128

Officer van Justitie v Sandoz general

Muesli bars, vitamins

129

What case shows Article 36 on public security?

Campus Oil v Minister for Industry and Energy

130

Biologische Producten judgment

Dual checks unlawful if unnecessarily imposed as technical tests already done in state of origin

131

What case showed that for proceduralisation test of proportionality, the court consider if Member has examined less trade restrictive alternatives with PROOF?

Commission v Austria [2011]

132

Commission v Belgium 1992 general

Locally produced waste

133

What case suggests MRs may be expanded to DA rules?

Essent v Belgium

134

Through what Article of what Treaty was regulatory competence transferred to the EU as a result of Cassis?

Article 114 TFEU

135

What is the 'exception' to the traditional rule that only discriminatory measures can be justified under Article 36?

Sometimes environmental protection, but no clear exceptions

136

Beer purity laws

Commission v Germany [1987]

137

What Articles allow Members to take certain national security measures?

Article 346 - 348 TFEU

138

What did the court require in Commission v Netherlands [2004]?

Detailed, in-depth studies on assessment of risk

139

Oebel

Protection of working environment MR

140

When does a justification need to satisfy both Article 36 and MR?

When it is based on public health

141

Commission v UK 1984 judgment

Disguised trade restriction

142

Member has power to decide degree of protection afforded and the manner in which they achieve that level

Commission v Germany: Hospital

143

What Advocate General and in what case advocated extension of MR to DA rules?

AG Bot in Essent v Belgium

144

what case showed scepticism over legality of second checks for Article 36?

Commission v UK 1983

145

Name at least one case on consumer protection as an MR

Commission v Germany 1987; Fietje

146

what is the traditional rule on justifying non-discriminatory measures?

can only be done under MR

147

How did Barnard describe proceduralisation of proportionality

'good governance approach to proportionality'

148

Why is it an issue that MRs are dependent upon agreement of outcome of adjudicative process?

Requires a national law to be removed when it is believed an MR should have saved it

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