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Flashcards in FMOG Deck (45)
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1

What are Goods

Com v Italy
"products that can be valued in money and which are capable of forming subject of commercial transactions"

2

What is a QR: Geddo v Ente Nazionale Risi

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

3

Quantitative restriction examples

R v Henn & Derby - UK did not allow sexually explicit material, absolute ban on entry = QR

ex. Parte Hedley Lomas - not granting export licence = QR

4

Rosengrad & Others

state monopoly is not automatically a QR

but will be a QR if there is no counter-balancing obligation (like allowing individuals to request state to buy for them)

5

What is a MEQR? Commission's View

Can be found in (no-longer applicable) Dir/70/50
- includes max/min prices, hindering purchases, payment conditions, etc.,

6

What is a MEQR? Courts view

Dassonville
"all trading rules capable of hindering trade, directly or indirectly, actually or potentially, intra-community trade"

- discriminatory intent is not required
- "rule of reason" established (reasonable restraints are not caught by art.34)

7

Categories of MEQR:

DISTINCTLY APPLICABLE - discriminates as a matter of law

INDISTINCTLY APPLICABLE - two forms
a) INDIRECTLY discriminatory - discriminates as a matter of fact

b) NON-DISCRIMINATORY/mutual recognition - cassis de dijon

8

Fachverband der Buch-und

Austrian law = books imported cannot fix price lower than retail fixed price or publisher's RRP at state of publication = MEQR

9

Com v France (Postal Franking Machines)

DISCRIMINATION IN FACT
- french authorities refused to approve British machines
- administrative discrimination = MEQR
(can be delay or refusing approval)

10

Com v Ireland (water supply pipes)

Irish council bid to tender incl. clause that said only use pipes complying with Irish standard (which only approved one company - Irish one)

INDISTINCLY APPLICABLE MEQR - restricted pipe supply to Irish manufacturer

11

Cassis de Dijon

Obstacles of trade = MEQR

1) NO discrimination needs to be intended
2) rule of reason confirmed
3) HOME STATE CONTROL - mutual recognition

- no dual burden

12

Com v Germany (german bier)

Labelling law = MEQR
- mutual recognition, home state power

13

Ministère Public v Deserbaus

French edam has to be 40%, germany tried to import 34.3% and call it edam
- french cannot restrict
- MEQR, mutual recognition

14

Rau

Belgium required margarine to be in cube packages
- MEQR, more difficult for importers to comply without incurring extra costs

15

Exports?

Same rules
but only applies if there is discrimination, and seems like if it is DISTINCTLY applicable (discrimination as a matter of law)
- Criminal Proceedings against Marco Gill

16

Cinematheque

yes SELLING ARRANGEMENTS are a MEQR

17

Torfean Borough Council v BBQ

Selling arrangements are MEQR

18

Sergus Oebel

Selling arrangements are not MEQR

19

Keck & Mithourard (confirmed in Tankstation)

SELLING ARRANGEMENTS ARE NOT MEQR
- no extra burden or cost

20

Opening hours = selling arrangement

Punto Casa SpA v Sindaco del Commune de Capena

Tankstation tHeustke

21

Familiapress

if its to do with composition of product, that is dual burden

not selling arrangement so MEQR

22

Dynamic Median Vetriebs

if you need to adapt product it isn't a selling arrangement

23

Tommaso Mellato v Commendi Padova

Italian rule on how to package bake off bread was a selling arrangement = NOT MEQR

- because packaged at point of sale, so not a product rule

24

Alfa-Vita Vassilpoulous

national rule that bake off bread sellers have to have a fully equipped bakery even though its not necessary for baking bake-off bread

- NOT SELLING ARRANGEMENT SO MEQR
- governs production process of product

25

QUALIFYING KECK

1) rules concerning sales characterised as a product rule (relating to product)

2) can still be a MEQR if it discriminates in law or in fact

26

de agostini

selling arrangement is MEQR if it is discriminatory in law or fact
- ban on TV adverts to children under 12 and for skincare products = MEQR
- affects importers more
- outright ban on promotion = greater impact on importer

27

Gourmet International

swedish restriction on advertising alcohol except to traders
= MEQR
discrimination in fact because domestic consumers are more familiar with domestic products so affects trade

28

Doc Moris NV

German prohibition on pharmaceuticals being made available on the internet
- MEQR
affects importers more (german sellers may have dispensaries)

29

Herber Kamer

prohibition on advertising from insolvent estate
= NOT MEQR
not discriminatory, not broad ranging enough

30

Com v Italy (motorcycle trailers)

measures restricting end uses of products can be discriminatory and thus a MEQR if it hinders access to market

3 categories:
1) product regulations - MEQR, Cassis
2) Selling arrangements - Keck
3) Residual category - incl. end use regulations