Free Movement of Goods

Question 1

Where is the quote for the definition of FMOG found?

Answer 1

Article 28 TFEU

Question 2

What are goods?

Answer 2

Comission v Italy Re Art Treasures:
CJEU defined goods as “products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions”

Question 3

What are the two types of restrictions?

Answer 3

Fiscal restrictions: Concerning money to move goods

Non-fiscal restrictions: Hinderance that is not relating to money (e.g inspections)

Question 4

What are the types of fiscal restrictions?

Answer 4

1. ) Discriminatory internal taxations - Article 110: INTERNAL to a member state
2. ) Changes incurred purely because a border is crossed -Art 28 and 30

Question 5

Article 110

Answer 5

Basically can’t impose any internal taxation on things from other member states that is different to similar domestic products

Question 6

Humblot case

Answer 6

• Importing of cars from other member states, on the face of it seemed all cars were affected but it only affected importers so indirect discrimination was found
• Gives good indication if products are similar as stated in Art 110

Question 7

Commission v UK

Answer 7

UK imposed higher tax duty on wine and a lower one on beer

• Beer produced predominantly domestically in the UK however wine was mostly imported
• Are they substitutional: court said yes

Question 8

Art 30

Answer 8

Customs duties: payments purely for crossing a frontier are prohibited

Question 9

Commission v Italy

Answer 9

“If there is a charge, no matter how small for goods to cross a border (even if not a customs duty) it is considered to be a customs duty”

Question 10

What are the two ways an Art 30 duty can be lawful?

Answer 10

1. ) Required by EU legislation

2. ) Genuine service rendered where sum charged is proportionate - (e.g Belgium case and for storage )

Question 11

Article 34:

Answer 11

NON-FISCAL

Quantitative restriction are prohibteded

Question 12

Geddo case

Answer 12

“Measures which amount to a total or partial restraint of imports, export s or goods in transit “

Essentially anything that is a ban/quota

Question 13

If there is a QR?

Answer 13

Can it be justified using Art 36?

This is an exhaustive list

Question 14

Conegate case

Answer 14

• Sex dolls being made in the UK and tried to ban the importation of them due to public morality under art 36
• there was a manufacturer of similar dolls in the UK so the ban was unjustified

Question 15

Hen and Derby

Answer 15

• Banning of pornography for public morality reason under art 36
• Couldn’t point to a manufacturer in UK so ban was lawful

Question 16

If there is no justification under art 36?

Answer 16

Unlawful restriction and breach of art 34

Question 17

If there is justification under art 36?

Answer 17

Has to be proportionate, and no more restrictive than is necessary:
If it is -> Lawful restriction
If not -> Unlawful restriction

Question 18

What if it’s not a ban/quota?

Answer 18

Maybe a measure equivalent to a quantitative restriction (MEQR)

Question 19

Dassonville case

Answer 19

“trading rules that may possibly hinder trade” anything that makes trade more awkward

Question 20

Cassis de Dijon case

Answer 20

2 rules:

1. ) Rule of mutual recognition: if a product is accepted in one member state then it is accepted in all
2. ) Rule of reason: mandatory requirements in the public interest - Restrictions allowed for indistinctly applicable measures if certain mandatory requirements are met

Question 21

If not an MEQR:

Answer 21

Restriction is lawful

Question 22

If it is an MEQR:

Answer 22

Is it distinctly or indistinctly applicable

Question 23

Distinctly applicable:

Answer 23

Measures that distinguish between domestic and imported goods

Question 24

Indistinctly applicable:

Answer 24

Measures that don’t distinguish and have an effect of causing a hindrance to the movement of goods

Question 25

Keck Case

Answer 25

"Needs to relate to circumstances surrounding selling the product rather than being about the substance of product itself" to be lawful

Question 26

If Keck is not satisfied :

Answer 26

Unlawful restriction

Question 27

If Keck is satisfied:

Answer 27

has to be 1.) Equal in Law 2.) Equal in fact If not, Keck is not satisfied

Question 28

Can a QR be justified?

Answer 28

Art 36 list, if not on the list: Unlawful If on the list: Is it proportionate? Yes -> Lawful No -> Unlawful

Question 29

Indistinctly applicable justifications/

Answer 29

Other justifications outside of Art 36 | Cassis de Dijon rule of reason: Mandatory requirements in the public interest

Question 30

Van Gen en Loos

Answer 30

Goods reclassified by the Dutch government | -New duty imposed higher rate of duty upon the importer, therefore, breaching Art 30

Question 31

Directive 76/50/EEC Art 2(3)

Answer 31

Non-exhaustive list of MEQRs

Question 32

70/50/EEC

Answer 32

Distinctly: those which apply only to imported. Indistinctly: apply equally to imported goods and domestically produced goods.