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EU law > Free movement of goods non-fiscal > Flashcards

Free movement of goods non-fiscal Flashcards

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1
Q

Art 34

A

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.

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2
Q

Geddo

A

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

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3
Q

Henn and Darby

A

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.

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4
Q

Examples of quantitative restrictions

A
  • Quota: limit of the quantity of products that can be restricted
  • Complete ban: on the import to a country of a given product
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5
Q

Article 36 grounds (justifying QRs)

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

Exhaustive list

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6
Q

Definition MEE and Dassonville facts

A

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
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7
Q

Ditlev v Bluhme (slight effect)

A

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

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8
Q

Art 34 measures

A
  • National rules/laws
  • Administrative provisions
  • Administrative practices
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9
Q

A.M.G-COS.MET

A

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

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10
Q

Com v Ireland

A

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
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11
Q

FRA.BO

A

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

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12
Q

Sapod audic:

A

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

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13
Q

Com v France

A

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

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14
Q

Considering MEEs Art 34 prohibits

A
  • 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
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15
Q

Commission v Germany

A

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

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16
Q

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

A

prohibited, unless justified by Art 36

17
Q

Indistinctly applicable rules: Cassis De Dijon

A
  • 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
18
Q

Mutual recognition principle: Cassis de dijon

A
  • 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
19
Q

Positives of Cassis:

A
  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
20
Q

Negatives of Cassis:

A
  • 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
21
Q

problems arising from Cassis de dijon

A

-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)

22
Q

Solution in Keck

A

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

23
Q

Definition, Selling Arrangement

A

“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

24
Q

Test for S.A.

A
  • 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)
25
Q

Diff types of S.A.

A
  • 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).
26
Q

Dynamic selling arrangements issue + case

A

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
27
Q

Keck criticism

A
  • no right balance

- Not every rule falls into product requirements or selling arrangements.

28
Q

AG Jacobs

A

Market access test:

  • Should have Unfettered access to Union market
  • Substantial(vague) restriction? set aside unless justified
  • test: is there substantial restriction?
29
Q

Com v Italy: trailers

A

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)

30
Q

ker-Optika: new category

A

-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)

31
Q

3 TYPES OF INDIRECTLY APPLICABLE RULES:

A
  • 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)
32
Q

Justification grounds

A
  • Art 36 TFEU
  • mandatory requirements

Distinctly App. rules: only 36
Indistinctly app: both 36 and MR

33
Q

Com v Ireland (art 36 justifiable grounds)

A 
Article [36] must
be interpreted strictly
and the exceptions
listed therein cannot
be extended to
cases other than
those specifically
laid down
34
Q

Henn and Dary (36 justifiable)

A 
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
35
Q

Sandoz

A 
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
36
Q

Mandatory requirements: cassis princ.

A

-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

37
Q

Mandatory requirements

A
  1. Effectiveness of fiscal supervision
  2. Consumer protection
  3. Environmental protection
  4. Protection of culture
  5. Road safety
  6. Protection of fundamental rights
38
Q

Steinfurt (consumer protection)

A 
Level of consumer
protection is fixed at
a level of ‘an average
consumer who is wellinformed, reasonably
and observant’, and
who also reads labels
39
Q

Piageme (labelling)

A 
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

EU law (3 decks)

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