Non-Fiscal Restrictions - Distinctly Applicable MEQRs

Question 1

Dassonville - Definition

Answer 1

• MEE if a trading rule could actually or potentially directly or indirectly hinder intra-Community trade
• No Community wide system for guaranteeing consumer the authenticity of a product’s origin, MS measures to prevent unfair conditions with this must be reasonable and the means of proof should not hinder MS/MS trade and should be accessible to all Community nationals
• Formalities may create a situation where harder to obtain a certificate of authenticity where the product is not purchased in its country of origin (as in free circulation) – MEE

Question 2

Rosengren (stresses that about effect of the restriction)

Answer 2

MEQR:
- FMG fundamental principle of the Treaties as reason for prohibition QR/MEQR (De Get en Slot Allium and Bejo Zaden case)
- Dassonville – Rule
- Current case QR as private individuals prohibited from buying alcohol directly into Sweden without personally transporting them
- Inconveniences
Health Justification:
- MS can impose own degree of health protection in accordance with Treaty limits (Deutchser Apothekerverband)
- Legislation which aims to control alcohol consumption to prevent harmful effects on human health and society reflects health and PP recognised exceptions (Ahokainen and Leppik)
- Measure still can’t be arbitrary discrimination or disguised trade restriction – Use less restrictive measures where possible – DA case above
- Current case – Ban may reduce availability of alcohol but company can still be asked to supply the alcohol and no refusal grounds stated/no guidelines so favouring distribution channel
- Age checks – Certified declaration by purchaser on purchase form that at least 2020

Question 3

Commission v Ireland (Buy Irish Case)

Answer 3

• Judgment:
• • The advertising campaign and the use of the “Guaranteed Irish” symbol largely unsuccessful but still “form part of a government programme which is designed to achieve the substitution of domestic products for imported products and is liable to affect the volume of trade between Member States”
• Non-binding government measures may be capable of influencing the conduct of traders and consumers in that State and thus of frustrating the aims of the Community as set out in Article 2 and enlarged upon in Article 3 of the Treaty”
• “Practice is intended to check the flow of trade between Member States by encouraging the purchase of domestic products, by means of an advertising campaign on a national scale and the organization of special procedures applicable solely to domestic products, and where those activities are attributable as a whole to the government and are pursued in an organized fashion throughout the national territory

Question 4

Frabo case

Answer 4

• Copper fittings = Construction product not subject to harmonisation
• Article 6(2) Directive 89/106 – MS NP allowed for standards but must comply with FMG principles (Commission v Belgium)
• Dassonville definition – Fact that an importer might be dissuaded from introducing or marketing the products in question in the Member State concerned constitutes a restriction on the free movement of goods for the importer (Case C 286/07 Commission v Luxembourg, paragraph 27).
• Violation where MS without valid justification, it encourages economic operators wishing to market in its territory construction products lawfully manufactured and/or marketed in another Member State to obtain national marks of conformity (Commission v Belgium, paragraph 69) or when it refuses to recognise the equivalence of approval certificates issued by another Member State (Commission v Portugal).
• Products certified by body compliant with NL and only body able to certify (DVGW)
• Alternative procedure expensive and administrative difficulties – Little practical use
• Considerable restriction as in practice, almost all German consumers purchase copper fittings certified by the DVGW.
• In reality, DVGW holds power for entry to the market

Question 5

Commission v France (Strawberries case)

Answer 5

• Article 30 (now Article 34) – QR/MEQR prohibition – Key instrument for IM creation
• Article 34 not just trade restrictions, also where MS abstains from adopting the measures required to deal with FMG obstacles not caused by the State
• MS failure to deal with FMG obstacles created by private individuals’ actions likely to affect FMG
• Public order and safeguarding of internal security are exclusive competences for the MS – Margin of discretion in determining what measures are most appropriate to eliminate barriers to the importation of products in a given situation.
• Not for EU to tell MS what measures to adopt to safeguard FMG on their territories but Court duty to verify whether MS has adopted appropriate measures for ensuring FMG, taking into account discretion
• Current case - Seriousness, frequency, duration
• Apprehension of internal difficulties cannot justify a failure by a Member State to apply Community law correctly (Case C-52/95 Commission v France)
• Economic grounds can never serve as justification for barriers prohibited by Article 30 of the Treaty (Case 288/83 Commission v Ireland)
• MS may not unilaterally adopt protective measures or conduct itself in such a way as to obviate any breach by another Member State of rules of Community law (Case C-5/94 R v MAFF)

Question 6

Bouhelier [1977]

Answer 6

• Export licences required for DP watch but not for watches marketed within France
  Whether the requirement of a licence for the export to a Member State of a product manufactured in another Member State
  constitutes a quantitative restriction on exports or a measure having
  equivalent effect.
• General rule based on Article 34 - Can’t have export licences required

Whether a quality inspection instituted
by a Member State and carrying with it a prohibition on the export of
products which do not satisfy the quality standards provided for by the national rules may be regarded as a quantitative restriction on exports or a measure having equivalent effect.
- MS quality policies must be developed in accordance with fundamental TP
- Not compatible as arbitrary discrimination based on where marketed
- Apart from exceptions in Treaty, can’t have export licences as far as direct or indirect, actual or potential obstacle to
intra-Community trade
- MEQR prohibited regardless of purpose

Question 7

Commission v UK [1985]

Answer 7

• UK prohibited the retail sale of certain goods imported from other Member States unless they were marked with or accompanied by an indication of origin
• Evidence that to avoid violating the UK law, retailers had to ask wholesalers to sell them already origin-marked products; French manufacturers have to mark their domestic appliance products - Increase production costs
• Distinguish between DP/IP - Assert prejudices against foreign products
• Common market objective and approximating MS economic policies to have characteristics of single domestic market
• Requirement makes marketing IP more difficult and slows down economic penetration in the EU as reduces sales of goods produced in other MS
• Quality argument - Manufacturer’s interest to indicate origin themselves
• Guarantee consumer protection by false origin rules