FMOG 2 Flashcards

Question

Can MS be liable for private parties inhibiting FMOG? state cases

Answer 1

Commission v France (farmers protests austria

Answer 2

Facts: Concerned French truckers and farmers who were protesting by blocking trade routes in and out of France. The commission took infringement proceedings against France. Held: In principle, a state could be liable where it has ‘manifestly and persistently abstained from adopting appropriate and adequate measures’ to prevent obstacles to the free movement of goods.

Answer 3

Held: Free movement obligations are important but may be overridden by requirements relating to public interest. Freedom of expression and assembly are cornerstones of the Constitutions of member states and are fundamental rights, so they could potentially override the free movement of goods. NB: Restrictions on the free movement of goods must be proportionate, but a wide margin of discretion is given to national authorities.

Answer 4

Distinctly Applicable MEQRs Treats imports less favourably. It clearly and obviously treats imports/exports less favourably but doesn't go as far as being a total ban/ the imposition of an obvious quota. Indistinctly Applicable MEQRs Barriers to trade that, on the surface, do not distinguish between domestic and imported products.

Answer 5

Comission v Ireland souvenirs Comission v Ireland Irish standards

Answer 6

Facts: Concerned an Irish rule that required imported souvenirs to indicate their country of origin/that they were foreign. Held: This was a distinctly applicable MEQR because if there is an imposition of an origin certificate requirement on souvenirs, it is more likely that Irish-produced souvenirs will be favoured over foreign-produced souvenirs. A certificate of origin will generally be impermissible unless the requirement is used on goods that are considered to be unique to that member state/require certain quality/materials from that country, ie. A Waterford Crystal

Answer 7

Facts: Dundalk CC put out a tender for its water supply. The contract stated that the pipes must comply with Irish standards. One of the companies that bid complied with international standards, but not the Irish standard, and was rejected for this reason. Held: This was an impermissible directly applicable MEQR. It inhibited the free movement of pipes among member states.

Answer 8

Cassis De Dijon

Answer 9

Facts: Concerned the importation of French liqueur into Germany by a large supermarket. German law mandated that the alcohol strength requirement for that type of liqueur had to be 25%. The French liqueur only had 20%. German government: This requirement for 25% was justified in the realm of public health. Held: Doubted that this could be capable of being justified on grounds of public health as the issue could be circumvented by labels. The practical effect of the rule was disproportionate: It blocked imports of spirits from different member states that did not fit the criteria. Member states can adopt MEQRs but they must be proportionate and justifiable. The measure must go no further than is necessary. Result: The measure went too far. De-regulatory: Rendered trade rules inapplicable where they prevented goods lawfully marketed in one state from being imported into another state. 2 key principles: 1. Mutual recognition Goods ‘lawfully produced and marketed’ in one member state should be able to be sold in the other member state. EU legal order is a distinct legal order and there is a notion of mutual recognition. 2. Mandatory Requirements Obstacles to free movement arising from ‘disparities’ between national laws are permissible if they are ‘necessary in order to satisfy mandatory requirements: The effectiveness of fiscal supervision The protection of public health The fairness of commercial transactions The defence of the consumer

Answer 10

Rau Gill andrews

Answer 11

Facts: Concerned a Belgian law which required margarine to be in cubes. Held: This rule was not justifiable and did not go towards any particular purpose. An MEQR must not go further than necessary. It is necessary for rules to be proportionate to the aim in view. If a Member State has a choice between various measures to attain the same objective, it should choose the means that least restricts the free movement of goods. Conclusion: A law to stop people from confusing butter and margarine is reasonable. But if one country forces margarine from another country to use only one type of packaging, that goes too far. Clear labelling could protect consumers just as well, without making trade harder.

Answer 12

Facts: Concerned the importation of apple vinegar from Germany to Italy. Italian law provided that only vinegar made from the fermentation of wine could be sold in Italy because it was better for public health. Held: This rule inhibits trade and restricts the free movement of goods. The CJEU did not consider apple vinegar to be a threat to public health and considered that the rule was disproportionate and that proper labelling was a more proportionate response. NB: The measure cannot go further than is necessary.

Answer 13

The main issue with Cassis de Dijon is that it created a very broad principle. This meant that many national rules, not just clear-cut trade barriers, were seen as restrictions under Articles 34 and 35. The text of those Articles refers to quantitative restrictions and measures having equivalent effect, but the Court went further. It began treating economic regulations (like rules on product composition, packaging, or marketing) as barriers to trade, even if they applied equally to domestic and imported goods. This allowed businesses to challenge a wide range of national laws by arguing they hindered market access.

Answer 14

Cinthetique

Answer 15

Facts: Concerned a challenge to a French rule that mandated that films could not be released to video until 12 months after cinema release. Held: CJEU states that this was a barrier to intra-EU trade in videos. If other Member States have to wait 12 months before releasing a movie on video in France, they lose a key opportunity to sell their products, especially since they’re foreign and already face challenges in getting into French cinemas. They want to promote and sell their films as widely as possible, including through video sales and advertising in video stores. This kind of delay could be a barrier to intra-EU trade, which is normally not allowed. France might justify the rule as a way to protect its own cinema industry, but the 12-month wait seems excessive. A shorter period, like 3 or 6 months, might achieve the same goal in a more proportionate way.

Answer 16

Borough council Stoke on Trent

Answer 17

Facts: B&Q was facing prosecution for violating the Sunday trading rule. Challenged the rule on the basis that it restricted the free movement of goods. Argument: As an importer of foreign goods, this rule restricts their ability to trade these goods and is a violation of their free movement of goods guarantee. Held: Cited Cinematheque: Justification is required. The UK argued it was in the public interest (e.g., allowing workers a day of rest). Conclusion: Under EU law, such measures still count as MEQRs and must meet the proportionality test.

Answer 18

Article 34 became an instrument for deregulation and negative integration.

Answer 19

Facts: Considered a challenge to a French rule that prohibited the resale of products at a loss. The rule was not designed to regulate trade it was to ensure that small competitors were not forced out of the market. Example: A small company makes chocolate and a big company lowers the price of their chocolate so people buy theirs and not the small company. The small company then goes out of business and then the company increases its prices again. Held: Conscious of its political status: In view of the increasing tendency of traders to invoke the Articles as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other member states, the Court considers it necessary to re-examine and clarify its case-law on this matter. A rule that restricts the volume of sales or removes a method of promoting sales can be considered an MEQR. Any rule that actually or potentially hinders trade falls within Article 34 TFEU. Today, traders often challenge national rules that limit their ability to market or sell goods even when those rules are not aimed specifically at imports. Rules on selling arrangements (like opening hours or advertising limits) are not MEQRs if they: Apply equally to domestic and imported goods, Do not add extra costs for imported goods, Do not regulate the product itself, and Do not block market access. If these conditions are met, the rule is outside the scope of Article 34. Re-examined Dassonville and Cassis: Contrary to what was previously decided, only product requirements are to be considered as MEQRs. Examples: Rules on size/composition/labelling/packaging Certain selling arrangements are not to be considered MEQRs: As long as they affect in the same manner, in law and, in fact, the marking of domestic products and those from other MS. NB: The focus is on whether there is a discriminatory effect between internal and external goods. Criticism: The line between product requirements and selling arrangements is blurred. Conclusion: The ban on reselling at a loss was a selling arrangement and therefore Article 34 did not apply.

Answer 20

It sought to place clearer limits on the Scope of Article 34. It shifted from the market access approach taken in Cassis to a discrimination approach, Focuses on the type of rule, rather than the significance of its effect on trade. Issue: Would it be easy to distinguish product requirements from selling arrangements?

Answer 21

Case C-315/92, Clinique [1994] ECR I-317. Held: Restriction on using the Clinique label in Germany affected the packaging of the company. It was a direct attack on a characteristic of their product. Therefore it was an MEQR. Case C-470/93, Mars [1995] ECR I-1923. Held: A restriction on the marketing of Mars products constituted an MEQR.

Answer 22

Famillia press

Answer 23

Facts: Concerned an Austrian rule that imposed restrictions on competitions that could be advertised. Because the competitions were expensive and they attracted children, the restriction was imposed. A German magazine challenged the rules on the basis that the rules intervened with the characteristics of their magazine product. The magazine in question would always advertise these types of competitions. It was a selling arrangement but it also interfered with the magazine's product characteristics.  Held: Prize competitions are a method of sales promotion, not just a selling arrangement. The prize was an integral part of the magazine’s content, not something that could be removed or adjusted depending on the country. Therefore, the Austrian rule impairs market access for the German magazine.  Conclusion: This is an MEQR. Criticism: If selling arrangements are permissible and rules on characteristics are impermissible, if the measure falls under both, when will it be considered an MEQR?

Answer 24

The Issue with the Decision in Keck: A lot of academic commentators and AGs have aligned with Cassis in that a shift to market access would be the most plausible. Justification: The jurisprudence of the court had become increasingly unprincipled and lacking in clarity except in the most straightforward cases. Leclerc

Answer 25

Facts: Concerned a challenge to a French rule that prohibited TV advertising of fuel sold at supermarkets. Argument: The removal of advertising makes it difficult to access the French market. AG Jacobs: Highlighted the issue with Keck. All undertakings which engage in a legitimate economic activity in a member state should have unfettered access to the whole of the Community market. Test: Whether there is a substantial restriction on market access. Cassis was too broad and Keck made the distinction between product characteristics and selling arrangements unclear. AG Jacob: Best of both worlds. Held: CJEU disagreed. Rules on promotion via TV advertising concern selling arrangements. They affect the marketing of imported and domestic goods in the same manner. Article 34 does not apply.

Answer 26

De augostini Gormet

Answer 27

Facts: Concerned a Swedish ban on TV advertising aimed at children under 12. The rule applied to all traders, domestically and across the border. It was argued that this was a breach of Article 34 as advertising was the company's only way to access the market. Held: The courts cannot exclude the possibility of an outright ban on this sort of advertising could potentially infringe on imports from other member states. However, it is a matter for the national courts to determine and examine whether the rule was proportionate.

Answer 28

Facts: Concerned a prohibition on advertising alcohol in magazines. It affected a magazine mainly aimed at traders. Held: Didn't expressly endorse a shift towards a market access standard but used the language. If something is liable to impede access to the market byproducts from another member state more than it impedes access by domestic products, even though it's a selling arrangement, it may fall foul of Article 34.

Answer 29

Case law prior to Keck shows the difficulty in what Article 34 applies to. Keck distinctions were overly rigid and extremely difficult to apply, line was not always clear. 3 types of national rule that may fall foul of Article 34: Discriminatory rules Rules on product requirement Rules which prohibit market access

Answer 30

Article 36 TFEU Quantitative restrictions or MEQR could be justified on: Grounds of public morality, public policy or public security The protection of the health and life of humans, animals or plants; The protection of national treasures possessing artistic, historic or archaeological value; The protection of industrial and commercial property. NB: These prohibitions can't constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Can't justify discriminatory rules disguised as barriers to trade.

Answer 31

Article 36 is strictly construed by the CJEU because the concepts are considered so central to the flourishing of the EU. For a discriminatory quantitative restriction to be justified, it must satisfy several conditions: NB: It must fall into one of the six exceptional categories listed in Article 36 TFEU. It must not be arbitrarily discriminatory. It must not constitute a disguised restriction on trade between Member States. It must adhere to the principle of proportionality whereby measures taken by a Member State should be restricted to what is necessary to attain the legitimate aim pursued. Case 34/79, Henn and Darby p.21 Held: The second sentence of Article 36 is designed to prevent restrictions on trade based on the grounds mentioned in the first sentence of that article from being diverted from their proper purpose and used in such a way as either to create discrimination

Answer 32

R v Henn Connengate

Answer 33

Held: The ban was justified on the basis of the public morality exception. it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory. At this time, the CJEU was content to leave it over to the member states. There was no legal market for pornography. NB: A trader cannot rely on the free movement of goods where the market is illegal. Note: This case was decided in 1972 before the EU was fully integrated.

Answer 34

Facts: Concerned a ban on inflatable dolls for sexual purposes. There was no marker for it at the time. Held: The courts were sceptical of relying on public morality to restrict trade between member states. The UK was also not taking any serious and effective measures against the sale of these dolls in domestic stores. Unless there was a serious tackling of the issue in a domestic sense, the UK cannot rely on public morality to block imports of such goods. Note: Could rely on public morality if they were actively trying to prevent the sale of dolls in the local shops.

Answer 35

Facts: Concerned a UK ban on exporting silver coins that were no longer legal tender. The UK tried to justify this on the basis that they have to protect the right to create coinage. Held: CEU agreed. It was a restriction justified by the need to protect the right to mint coinage, which is traditionally regarded as involving the fundamental interests of the State

Answer 36

Campus oil

Answer 37

Facts: Concerned a rule that said that importers had to buy a certain portion of their petroleum needs from a state-owned oil refinery in Ireland. This was to ensure that there was always a minimum supply of petrol products in the Irish state. Held: The aim of ensuring a minimum supply of petroleum products at all times was to be regarded as transcending purely economic considerations. If the state does not have fuel in their country, public security will be at issue. Fuel has always been a resource that individuals have fought over.

Answer 38

Comission v UK (turkeys) Sandoz Whhiskey association

Answer 39

Facts: Concerned a ban on the import of poultry meats to combat the spread of a contagious disease. Held: The UK is effectively trying to justify a discriminatory restriction on trade under the guise of health. There was no evidence that the disease was circulating and no proof that it was harmful to humans or other animals. NB: Must show that the ban is justified, ie. Through evidence

Answer 40

Facts: Concerned a Dutch ban on the importation of muesli bars. Argued that should be able to ban that bar because it contains vitamins and minerals that may pose a harmful effect on consumers. 2 conflicting pictures: Dutch state couldn't produce substantive evidence that the minerals were actually harmful. The importer of the muesli bars couldn't produce evidence that they were not harmful. Held: Due to scientific uncertainty, Member States must be afforded a margin of discretion: Insofar as there are uncertainties at the present stage of scientific research, it is for the Member States, in the absence of harmonisation, to decide what degree of protection of the health and life of humans they intend to ensure [with regard to the free movement of goods]. At the time, EU regulation of food production was limited. Therefore, in the absence of EU rules, Member States could ban products if they believed the products posed a risk to human health. Once the EU adopts harmonised rules, that discretion is reduced.

Answer 41

Facts: Concerned minimum unit principles laws. Rationale: If the price of cheap alcohol was increased, people would consume less cheap alcohol and public health would be ameliorated. Held: There was sufficient evidence to conclude that excess alcohol consumption is detrimental to public health and these measures may go some way to ameliorating those harms. Issue: Was the measure proportionate? Held: Taxation may be more appropriate than introducing minimum pricing but member states have discretion.

Answer 42

NB: Only deals with indistinctly applicable MEQRs. (Cassis) In order for an indistinctly applicable MEQR to be justified, it must fall under the mandatory requirement. Environmental protection Fundamental rights

Answer 43

Commision v denmark recyclable bottles

Answer 44

Facts: Concerned a Danish rule that mandated that beer and soft drinks be sold in approved reusable containers. Danish government: These recyclable containers are essential for the protection of the environment. Held: The protection of the environment is one of the Community’s essential objectives. However, the measure was disproportionate to the aims that were being pursued. Note: The case would now probably be decided differently because of the current climate crisis.

Answer 45

Facts: Traders brought proceedings against Austria because they failed to uphold the free movement of goods by stopping protests. Held: Must reconcile the protection of fundamental rights to expression and assembly with the free movement of goods. It is legitimate for certain types of indistinctly applicable MEQRs to restrict the free movement of goods where rights like freedom of expression and assembly are at play.

FMOG 2 Flashcards

(74 cards)