Flashcards in FMG - Non-fiscal barriers Deck (42):
Measures which amount to a total or partial restraint...of imports, exports, or goods in transit
Henn & Darby
restriction of hardcore pornography acceptable as not widely available in UK. Justified on moral derogation
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states
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)
Definition of MEQR -‘All trading rules enacted by member states which are capable of hindering , directly or indirectly, actually or potentially, intra-community trade’
Imported goods should be inspected. Restricted imported goods, therefore contravenes article 34
Buy Irish Case
Promoted Irish goods above imported goods, so has protectionist effect, and breaches art 34
Comm v Ireland (Irish Souvenirs)
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
Belgian requirement for certificate of origin for Scottish whiskey was indistinctly applicable MEQR
Commision v Ireland (pipe size)
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.
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
Tried to prohibit the importation of blow up love dolls on public morality grounds. Not applicable as manufactured its own
R v Thompson
Uk banned export of silver coins on basis of devaluation of the mint
Cullet v Leclerc
- 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.
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
Commission v Germany
Refused to import beer which claimed had long term negative health effects. CJ ruled inconclusive scientific evidence, therefore no sufficient health risk
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.
Commission v UK (Turkeys)
UK banned French turkey, on grounds of public health, newcastles disease. Not sufficient evidence. Reaction to BSE ban
Bee strain only allowed to be kept on ecological grounds
C v Netherlands
Blanket ban on fortified foods was disproportionate, must be made on case by case basis.
Cassis de Dijon
Germany had set minimum alcohol content of 25% Cassis de Dijon contravened this. Indistinct MEQR. Not allowed as presumption of mutual recognition applies.
Mars with 10% extra printed on side permitted in MS countries. Germans complained as packaging bigger than product, therefore deceptive. No as PMR
Commission v Italy (Cocoa)
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.
Otherwise known as the rule of reason. Only applies to MEQR (not barrier to trade by origin but by effect)
Eligible mandatory requirementsq
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)
A measure affecting the way in which a product is sold, not the product itself (Keck & MIthouard)
Measure equivalent to a quantitative restriction
Torfen BCv B & Q
Trading began in 1990s on Sunday. This broke UK law regarding Sunday trading. Sunday trading rules break free movement of goods law
Stoke-on-Trent v B & Q
Sunday trading rules are a selling arrangement not an MEQR as they do not affect the product, they affect the way it is sold.
Keck and Mithouard
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
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.
Gourmet international products
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.
Fachverband v LIBRO
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’.
mirror image of article 34 but is for exports rather than imports. - However an indistinctly applicable MEQR will not breach article 35
Article 35 only applies to distinctly applicable MEQRs not indistinctly applicable MEQRs
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
R v Royal Pharmaceutical Society of GB
Prohibits certain over the counter drugs, is public body so must be careful not to restrict trade.
What justification are there of distinct MEQRs?
Only article 36
What restrictions are there on the derogations?
Proportionate and not arbitrary
What 2 rules were established in Cassis De Dijon?
Rule of reason (mandatory requirements)
Presumption of mutual recognition