Non-Fiscal Restrictions - Indistinctly Applicable

Question 1

Rau v Belgium (margarine must be packaged in a cube)

Answer 1

• Rewe case (CdeD?) – No EU-wide common rules about the marketing of the products concerned – Accepted FMG obstacles caused by NL disparities as far as rules which apply to DP/IP without distinction necessary to satisfy mandatory consumer protection requirements
• Such rules need to be proportionate, and MS should choose method to achieve objective least restrictive of trade/FMG
• Current case – Not proportionate and evidence

Question 2

Prantl

Answer 2

• IP – Bottle wine differently for that specific MS, then repackage so additional costs in marketing, IP deprived of commercial advantage of using host state typical bottle
• Can have NL rules justified based on consumer protection or fair trading and worthy consumer confusion avoidance consideration (Reg 355/79)
• Have regard to traditions and practices all MS in a common market
• Bottle identical or imperceptibly different from Blocksbeutel bottle used to market wines from certain regions of Italy so NL exclusive right may not be used as a barrier to imports of wines from other MS in similar bottles in accordance with the state of origin’s fair and traditional practices
• Comprehensive community guidelines for wine-labelling Articles 12-18 Reg 355/79
• Rule = MEQR

Question 3

Cassis De Dijon

Answer 3

• Judgment
• No common EU rules for production and marketing of alcohol – MS can regulate it on own territory
• Barriers to free movement of goods owing to disparities of national law accepted so far as necessary for the satisfaction of mandatory requirements relating to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer
• ECJ response to public health argument – Extremely wide prevalence of low alcohol content options on the market and high alcohol content beverage often consumed in diluted form
• Commission – May lead to standardisation but more transparency;
• Could satisfy transparency aims by requiring the display of an indication of origin and of the alcohol content on the packaging of products.
• ECJ – Rules do not serve a purpose of general interest to take precedence over FMG, fundamental Community rule; Purpose of rules to exclude other MS products from the German market
• No valid reason why not marketed if lawfully manufactured in original MS

Question 4

Deserbais (In France, Edam cheese must have at least 40% fat if marketed as Edam)

Answer 4

• Cassis - MS freedom to regulate marketing of product rules where no harmonisation and accept as far as necessary for including consumer protection and fair trading
• Cheese lawfully produced under Edam in Germany
• No common rules for names of Cheeses
• Not compatible with Article 34 or common market objectives to apply such rules to imported cheeses of the same type where those cheeses have been lawfully produced and marketed in another Member State under the same generic name but with a different minimum fat content once adequate information provided to consumer

Question 5

TORFAEN BC v. B&Q (Sunday Trading Case)

Answer 5

• Applies to DP/IP alike so IP marketing in principle not more difficult than DP marketing
• Cinetheque SA case – Provision not compliant with FMG Treaty principle unless proportionate and Community law justification
• Current case aim justified with regard to community law question – Oebel case = National rules governing the hours of work, delivery and sale in the bread and confectionery industry constitute a legitimate part of economic and social policy, consistent with the objectives of public interest pursued by the Treaty.
• Same for retail premises opening hours – Political and economic choices and socio-cultural issue; Current community law = Matter for MS and rules not designed to govern intra-community trade rules

Question 6

Dassonville

Answer 6

See indistinctly applicable flashcard

Question 7

Environment Mandatory Requirement cases

Answer 7

• Comm v. DK (Recycling) – Certain drinks must be packaged in recyclable containers. Importers have to repackage. Mandatory requirement = Protection of the encironment
• Radlberger deposit – Deposit return scheme which depended on the packaging. Good for the environment. Is it necessary? Complies with proportionality only if the prosucers and the distributers get a reasonable transition oeriod to adapt so that everyone affected can actually participate
• Comm v. Austria (Heavy Lorries) – Ban on the heavy lorries using A12 in the Tyrol. Excepted necessary but fell on proportionality 2 month transition period too short. MS has a duty to check out alternative measures which would reduce air pollution which would be less restrictive on trade than a ban.

Question 8

Commission v Denmark (Precautionary principle)

Answer 8

• Sandoz, Bellon – Scientific research uncertainty where no harmonisation – MS can decide on their intended level of protection of human health and life and on whether to require prior authorisation for the marketing of foodstuffs, always considering FMG
• Sandoz – Discretion particularly wide regarding public health protection where scientific uncertainty with vitamins where potentially harmful if taken excessively and hard to monitor excessiveness when taken with other foods
• Sandoz – National authority must show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary to give effective protection to the interests referred to in that provision and, in particular, that the marketing of the products in question poses a real risk to public health
• Risk must be established on the basis of the latest scientific data available when decision adopted.
• Risk assessment – MS must consider probability and seriousness of risk from side effects
• If scientific uncertainty persists, then precautionary principle (Case C-157/96 National Farmers’ Union and Others
• Risk assessment cannot be based on purely hypothetical considerations (EFTA Surveillance Authority v Norway)
• Proper PP application presupposes, in the first place, the identification of the potentially negative consequences for health of the proposed addition of nutrients, and, secondly, a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research (see, to that effect, EFTA Surveillance Authority v Norway)
• Impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures (EFTA Surveillance Authority v Norway).
• Such measures must not be allowed unless they are non-discriminatory and objective (EFTA Surveillance Authority v Norway
• Absence of a population nutritional need cannot, by itself, justify a total prohibition, on the basis of Article 30 EC of the marketing of foodstuffs lawfully manufactured and/or marketed in other Member States.
• Current case – Danish administrative practice disproportionate as, apart from the four restrictively defined cases of what is considered to constitute a nutritional need, it does not distinguish according to the different vitamins and minerals added or according to the level of risk which their addition may possibly pose to public health

Question 9

Cinetheque

Answer 9

• Video cassette rental rule in France – No video cassettes could be released for the first year after the film released; Protect the cinema industry as had to go to the cinema; Discretionary

Question 10

Working environment cases

Answer 10

• Marchandise – Opening hours of bakery. Protect workers fromnot having to work too many hours
• Oebel

Question 11

Italian Trailers Case

Answer 11

Public safety on roads allowed

Question 12

Keck and Mithouard (French law preventing resale at a loss)

Answer 12

• Cassis de Dijon (Rewe case) – Absence of harmonising legislation, FMG restrictions on imports lawfully manufactured and marketing in state of manufacture, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 34
• Applies even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods.
• “Contrary to previous case law…certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States”
• Where meet those requirements, measure doesn’t prevent access to the market or impede access more than for DP – Outside Article 30 (34)
• Article 30 (34) doesn’t apply to MS legislation imposing general prohibition on resale at a loss as not designed to regulate trade between MS

Question 13

Familiapress

Answer 13

• Judgment:
  Article 34 violation question:
• Article 30 (now 34) – No QR/MEQRs on import
• Dassonville – “Any measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade constitutes a measure having an effect equivalent to a quantitative restriction”
• Keck Cassis quote
• Keck – CSA quote
• Current case – Not CSA as law relates to sales promotion but influences the actual content of the product as competitions integral part of magazine
• Current case – Requires products in other MS to alter product contents so access of the product to MS market impaired so hinders FMG -> MEE under Article 30 (34)
  Article 36 Defence Question:
• Smaller publisher struggles concern
• Article 10 ECHR FoE (Commission v Netherlands [1991] and Vereiniging Veronica Omroep Organisatie case
• Cassis – Proportionality requirement, no alterative measures less RoT
• Schindler case – Lottery restrictions and rules MS discretion; high risk of crime or fraud given high amount of winnings
• Current case – Not applicable to magazine games – Small scale, less at stake, not economic activity in own right/one aspect of the editorial content
• ERT case – Overriding requirement argument must be interpretated in light of GP and FR (including FoE)
• Current case – Could have used less restrictive measures e.g. taking out the relevant page

Question 14

Leclerc Simplec

Answer 14

Need substantial restriction

Question 15

Sandoz (scientific evidence inconclusive scenario)

Answer 15

• Judgment:
  1. Where would have mutual recognition, is there a public health defence?
• Article 36 human health defence once no arbitrary discrimination or disguised trade restriction
• Added vitamin foods needing prior administrative authorization likely to impede trade so MEQR
• Scientific research inconclusive as to what quantity of vitamins is harmful and what the precise harmful effects are
• Vitamins not meeting harmful threshold but no definitive answer once mixed with other foods with vitamins which is impossible to foresee
• Council Directives on addition of vitamins harmonisations (1962 and 1963 and 1976)
• Community legislative accepts the principle that it is necessary to restrict the use of food additives to the substances specified, whilst leaving the Member States a certain discretion to adopt stricter rules – Prudence
• Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten – Where no harmonization and uncertainties in scientific research, MS can decide what degree of protection of the health and life of humans they intend to assure, having regard to FMG requirements
• Apply to vitamins as although not harmful themselves, may have harmful effects if consumed excessively
• Article 36 human health defence justified in principle
• Proportionality requirement – Restrictions limited to what is necessary to attain the legitimate aim of protecting health
• MS must authorize marketing when the addition of vitamins to foodstuffs meets a real need, especially a technical or nutritional one.

Question 16

De Agostini

Answer 16

• Judgment:
• Leclerc-Simplec – Court = TV advertising prohibition in a particular sector is CSA in that it prohibits a particular form of promotion of a particular method of marketing products.
• Keck and Mithouard – NM restricting or prohibiting CSA not covered by Article 34 of the Treaty, so long as they 1) apply to all traders operating within the national territory 2) and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
• Current case – First condition fulfilled
• Outright ban might have a greater impact on IP
• De Agostini stated TV advertising only effective form of promotion for penetrating the Swedish market as had no other advertising methods for reaching children and their parents
• Must show that the ban does not affect in the same way, in fact and in law, the marketing of IP
• NC must determine whether ban necessary to satisfy overriding GPI requirements or Article 36 ground(s) if proportionate and no less RoT method to achieve those aims
• Cassis de Dijon – Fair trading and the protection of consumers in general are overriding requirements of general public importance which may justify obstacles to the free movement of goods

Question 17

Gourmet International

Answer 17

• Keck - CSA must not impede IP access to the market more than IP
• De Agostini - Outright ban on a form of promotion may have a greater impact on IP than DP
• Alcohol beverages’ consumption is linked with local habits and customs - IP greater impact if no advertising as customers more familiar with DP
• Allowed editorial advertising - Easier DP access
• Article 34 violation as heavier burden on IP

Question 18

Karner v Troostwijk (rules relating to the advertising of the sale of an insolvent company)

Answer 18

Keck two conditions satisfied

Question 19

Bermanjer (Belgian rules on intinerant sales without prior authorisation)

Answer 19

• Marketing method - Not intended to regulate trade between MS
• Keck two conditions - 1. Applies to Belgian and foreign producers; 2. Information available - Difference too insignificant if there at all

Question 20

Italian Trailers Case - Post importation use of product

Answer 20

• Judgment:
  MEE Question:
• Consider whether provision would affect the free movement of trailers as trailers of little use without a motor vehicle that can tow them
• Article 56 Highway Code applies whether trailer domestic or imported
• Trailers designed for motorcycles – Other use possibilities very limited
• Prohibition on the use of a product in MS affects consumer behaviour which in turn affects the access of that product to the market of that MS
• Prohibition means that consumers have no interest in buying this kind of trailer (Analogy with Commission v Portugal Para 33 affixing of tinted film to motor vehicle windows) – Provision prevents a demand in the market for such trailers so hinders the importation of this kind of trailers – MEE unless objective justification

Justification Question:
- NP must be appropriate for objective pursued and not go beyond what is necessary to attain it (Case 54/05 Commission v Finland)
- Current case – Italy = Road safety justification (Supporting precedent = Van Schaik, Snellers)
- Current case – Appropriate as no Community or national rules to ensure that the use of a motorcycle with a trailer not dangerous – Stability and braking capacity of motorcycle affected and potentially dangerous for other road users

Question 21

Mickelsson and Roos (Swedish rule limiting in what waterways can use watercraft)

Answer 21

• Cassis - Article 34 violation where MS take measures aiming to treated IP less favourably than DP. Even if no harmonisation standards, once meet mutual recognition, Article 34 violation even if also apply to DP
• Italian Trailers - Any other measure which hinders IP access to the market of a Member State is violation
• Italian Trailers - If restriction has considerable influence on consumer behaviour, may hinder market access for IP as consumer limited interest because of regulations
• If occurs, subject to no justification, then violation
• Trailers - NP must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it
• Swedish government argument = Health and life of humans and animals; environmental protection
• Commission v Italy = Even if other possible measures, MS cannot be denied the possibility of attaining an objective such as the protection of the environment by the introduction of general rules which are necessary on account of the particular geographical circumstances of the Member State concerned and easily managed and supervised by the national authorities
• NP = Personal watercrafts may be used without regard to pollution rise - Beyond what necessary
• Conditions = first, the competent national authorities are required to adopt such implementing measures, secondly, those authorities have actually made use of the power conferred on them in that regard and designated the waters which satisfy the conditions provided for by the national regulations and, lastly, such measures have been adopted within a reasonable period after the entry into force of those regulations.

Question 22

ANETT (Spanish legislation prohibiting tobacco retailers from importing tobacco product)

Answer 22

• Dassonville definition
• Commission v Italy - Article 34 reflects the obligation to comply with the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of EU products to national markets
• Measures adopted by a Member State the object or effect of which is to treat goods coming from other Member States less favourably are to be regarded as measures having an effect equivalent to quantitative restrictions, as are rules that lay down requirements to be met by such goods, even if such rules apply to all products alike
• Also hinder market access
• Current case - These not applicable
• Have to use authorised wholesalers for supplies - Disadvantages compared to importing themselves; can’t sell products from other MS not stocked by wholesalers and could react more flexibly and quickly to consumer demands, border areas faster - MEQR as effects range of products and IP acess
• No evidence of fiscal, customs and health control reasoning
• Could use less restrictive measures to get uniform products e.g. pre-defined range
• Economic reasons not justification

Question 23

Commission v UK [1985]

Answer 23

• 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

Question 24

Fachverband v Libro Handelsgesellchaft

Answer 24

• Austrian books sell at loss prohibition case - MEQR?
• Dassonville rule
  Keck - CSA allowed once DP/IP and affect them the marketing of them in the same way both in law and in fact - No impeding market acess or IP more than DP so allowed
• Paragraph 3(2) of the BPrBG, by prohibiting Austrian importers of German-language books from fixing a retail price below that fixed or recommended by the publisher for the State of publication, less any VAT comprised in it, provides for a less favourable treatment for imported books, as was observed by the Commission and the EFTA Surveillance Authority, since it prevents Austrian importers and foreign publishers from fixing minimum retail prices according to the conditions of the import market, whereas the Austrian publishers are free to fix themselves, for their goods, such minimum retail prices for the national market.
• MEQR as effect imported books less favourably

Mandatory requirement for small book publishers protection issue
- Protection of books as cultural objects, cannot constitute a justification for measures restricting imports within the meaning of Article 30 EC (Association des Centres distributeurs Leclerc and Thouars Distribution, paragraph 30).
- “The protection of cultural diversity in general cannot be considered to come within the ‘protection of national treasures possessing artistic, historic or archaeological value’ within the meaning of Article 30 EC.”
- “However, the protection of books as cultural objects can be considered as an overriding requirement in the public interest capable of justifying measures restricting the free movement of goods, on condition that those measures are appropriate for achieving the objective fixed and do not go beyond what is necessary to achieve it.

• Could use less restrictive measure e.g. by allowing the latter or the foreign publisher to fix a retail price for the Austrian market which takes the conditions of that market into account.