Free movement of goods non-fiscal

Question 1

Art 34

Answer 1

Prohibits quantitative restrictions.
- Quantitative restrictions reduce the amount of goods that can be imported into the market as opposed to customs duties which allow the goods but increase prices.

Question 2

Geddo

Answer 2

quantitative restrictions are measures which amount to total or partial restraint of imports exports or goods in transit.

Question 3

Henn and Darby

Answer 3

Henn and Darby: a ban on import to the UK of obscene and indecent materials was found to be a quantitative restriction.

Quantitative restrictions are the most extreme form of prohibition of trade.

Question 4

Examples of quantitative restrictions

Answer 4

• Quota: limit of the quantity of products that can be restricted
• Complete ban: on the import to a country of a given product

Question 5

Article 36 grounds (justifying QRs)

Answer 5

• public policy/morality/security
• protection of health, animals, plants
• historic/archaeological value
• industrial/commercial property

Exhaustive list

Question 6

Definition MEE and Dassonville facts

Answer 6

Facts :ban on the import of scotch whiskey without a certificate of origin restricted parallel imports

definition: ‘all trading rules by member states which are CAPABLE of hindering or directly or indirectly, intra-[union] trade are measures having effect equivalent to QRs

• not just ones that actually hinder but CAPABLE
• effect is important not intent
• Art 34 applies even if given product is not yet produced in other MSs
• art 34 =broad. No de-minimus rule. Slightest effect (volume wise)=prohibited

Question 7

Ditlev v Bluhme (slight effect)

Answer 7

Danish prohibition of keeping any bees aside from brown bees on laeso island.

Question 8

Art 34 measures

Answer 8

• National rules/laws
• Administrative provisions
• Administrative practices

Question 9

A.M.G-COS.MET

Answer 9

art 34 was applicable in the context of remarks made by a finish government expert as regards the safety of vehicle lifts made in Italy

Question 10

Com v Ireland

Answer 10

art 34 applied to a non-public body, supported by Irish gov, that encouraged substitutions of imported products with Irish ones.

• Members were appointed by gov
• Was financed by gov
• Aims and campaign were defined by the gov

Question 11

FRA.BO

Answer 11

applies to a private standardisation body that certifies products (pipes) for the sale.

Art 34 can also apply to non-public bodies (ex. Sport/professional bodies) that have regualtionary functions similar to a state

Question 12

Sapod audic:

Answer 12

Contractual provisions are not challenged under art 34 because it is not imposed by a MS but agreed between individuals

Question 13

Com v France

Answer 13

under art 34, member states are responsible for actions takes by private bodies that obstruct free movement of goods

Question 14

Considering MEEs Art 34 prohibits

Answer 14

• Distinctly applicable rules: national rules that disadvantage goods from other MS because of their origin
• Indistinctly applicable rules: National rules that apply to all products but disadvantage goods from other members in their direct effect

Question 15

Commission v Germany

Answer 15

ART 34: prohibits rules that require imported goods to be sold with a designation of origin BUT
- Origin marking rules are lawful if a product has specific qualities and characteristics due to being originated in a specific region

Question 16

Rules/measures that subject imported goods to inspections and procedures are…

Answer 16

prohibited, unless justified by Art 36

Question 17

Indistinctly applicable rules: Cassis De Dijon

Answer 17

• German rule required all fruit liqueurs to have alc. content of 25%
• This applied to all spirits but had diff effect on imported
• If they’ve been lawfully produced/marketed in one MS, they can be intro’d in another
  Arguments by Germany:
• Risk of inducing tolerance towards alcohol
• Competitive advantage of low alcohol beverages
  Both were dismissed as not valid arguments

Question 18

Mutual recognition principle: Cassis de dijon

Answer 18

• If they’ve been lawfully produced/marketed in one MS, they can’t be prohibited in another
• even if they might not be of the accepted standard in other MS
• Double burden effect. E.g. German liqueurs in Germany only need to follow German rules. However French liqueurs being imported have to follow French AND German rules. This causes them not to be able to compete with the domestic product.
• Product requirements causing this efect.= contrary to mutual rec. princ.
• e.g, packaging rules might be different. If MS requires a diff packaging, foreign will have to meet their national rules and MS (double burden effect: increase in cost, time wasting, etc, = foreign won’t attempt to trade in that MS)
• RAU: belgian margarine, not butter?-cube packaging
• COM V GERMANY: beer, purity requirements.
• COM V ITALY: reserve chocolate, no veg fat

Question 19

Positives of Cassis:

Answer 19

1. principle of subsidiarity: allowing MSs to regulate products produced domestically (while recognising other MSs)
2. consumer choice increase
3. more markets for producers
4. open market ‘race to the top’ best wins

Question 20

Negatives of Cassis:

Answer 20

• race to bottom risk- low quality can do well instead (aldi cf waitrose)
  2. businesses could relocate to MSs with ‘lower standards’, leading other MSs to lower them too.

HOWEVER

1. not always the case that consumer by cheaper, low qual products
2. madatory requirements (other way to justify than art 36) could prevent race to bottom

Question 21

problems arising from Cassis de dijon

Answer 21

-Too broad. Businesses could challenge rules just because they didn’t wanna comply. Even ones that applied to everyone in fact (e.g. i dont like left hand drive)

Question 22

Solution in Keck

Answer 22

2 categories
-Product requirements (packaging, form, composition etc)=MEE
-Selling Arrangements (when, how, where) NOT MEE.
as long as apply to all traders and affect them the same in fact and law

Art 34, narrower

Question 23

Definition, Selling Arrangement

Answer 23

“Provisions concerning inter alia the place and times of sale of certain products and advertising of those products as well as certain marketing methods are provisions governing selling arrangements within the meaning of Keck” - Karner

S.A. have a presumtion of legality

Question 24

Test for S.A.

Answer 24

• Is a rule at issue applied to all traders? (universality of a rule)
• Does it affect all in the same manner in law and fact (neutrality of a rule)

Question 25

Diff types of S.A.

Answer 25

- Static selling arrangements: Rules on the time and place in which products can be sold - Dynamic selling arrangements: Rules on advertisement & sale methods. (THESE RULES ARE MORE LIKELY NOT TO FULFILL THE TEST FOR SELLING ARRANGEMENTS AND ARE MORE LIKELY TO BE ILLEGAL).

Question 26

Dynamic selling arrangements issue + case

Answer 26

can lead to a different burden in fact - De Agostini: dinosaur ads banned. Satisfied universality but not neutrality. (only effective way to penetrate market for foregin) - DocMorris: prohibit online sale of meds. Didn't satisfy neutrality. (internet provides way to gain direct access to german market). Rule Only justified if meds needed prescription

Question 27

Keck criticism

Answer 27

- no right balance | - Not every rule falls into product requirements or selling arrangements.

Question 28

AG Jacobs

Answer 28

Market access test: - Should have Unfettered access to Union market - Substantial(vague) restriction? set aside unless justified - test: is there substantial restriction?

Question 29

Com v Italy: trailers

Answer 29

embraced AG Jacobs - product requirements = mees - any measure hindering access from other MS = also covered by the concept - prohibition of trailers, had effect on consumer behaviour. They weren't permitted= no interest to buy. - diff approach. Looks straight at market access intead of discrimination Mickleson and Roos: jetskis, barely allowed (same held)(people said keck was useless after this)

Question 30

ker-Optika: new category

Answer 30

-prod req - sell arrange. -OTHER MEASURES: not any of the above 2. i.e rules on use of prod. by people (hence keck is still good law)

Question 31

3 TYPES OF INDIRECTLY APPLICABLE RULES:

Answer 31

- PRODUCT REQUIREMENTS (ILLEGAL, DOUBL BURDEN, CASSIS, JUSTIFY [GROUNDS FROM ART 36 OR MADATORY REQUIREMENTS]) - SELLING ARRANGEMENTS (LEGAL, KECK, IF IT DOESN’T FULFILL TEST, LOOK AT JUSTIFICATION) - OTHER MEASURES: (IF ANY NATIONAL LAW HINDERS ACCESS TO MARKET OR NOT [E.G. COMPLETE OR PARTIAL BANS], LOOK AT JUSTIFICATION)

Question 32

Justification grounds

Answer 32

- Art 36 TFEU - mandatory requirements Distinctly App. rules: only 36 Indistinctly app: both 36 and MR

Question 33

Com v Ireland (art 36 justifiable grounds)

Answer 33

``` Article [36] must be interpreted strictly and the exceptions listed therein cannot be extended to cases other than those specifically laid down ```

Question 34

Henn and Dary (36 justifiable)

Answer 34

``` It is for each MS to determine the requirements of public morality in accordance with its own scale of values and in the form selected by it ```

Question 35

Sandoz

Answer 35

``` Based on the uncertainties inherent in the scientific assessment, rules prohibiting the sale of muesli bars with added vitamins are justified on human health grounds ```

Question 36

Mandatory requirements: cassis princ.

Answer 36

-Mutual recognition principle -Mandatory rules Justification Cassis de dijon: Mandatory requirements aimed to balance the broad mutual recognition principle and its effect on MSs’ regulatory powers

Question 37

Mandatory requirements

Answer 37

1. Effectiveness of fiscal supervision 2. Consumer protection 3. Environmental protection 4. Protection of culture 5. Road safety 6. Protection of fundamental rights

Question 38

Steinfurt (consumer protection)

Answer 38

``` Level of consumer protection is fixed at a level of ‘an average consumer who is wellinformed, reasonably and observant’, and who also reads labels ```

Question 39

Piageme (labelling)

Answer 39

``` MSs are allowed to impose language requirement as regards labelling if it is not in a language easily understood ``` ``` Geffroy: Though not with the ban on the use of another language easily understood by a purchaser or ensuring that a purchaser is informed by other means ```