WS 4: Free Movement of Goods Flashcards
(46 cards)
Article 26 TFEU
Need to create an “area without internal frontiers” in which the free movement of goods would be ensured.
Article 28 TFEU
Prohibition between MSs of customs duties on imports and exports and of all charges having equivalent effect
Article 30 TFEU
Customs duties on imports and exports and charges having equivalent effect shall be prohibited between MSs
Stages to answering a free movement of goods question?
STEP 1: Introduce the relevant legislation
STEP 2: Is the measure a QR/MEQR or a selling arrangement?
STEP 3: Is the measure distinctly applicable or indistinctly applicable?
STEP 4: Can the measures be justified?
STEP 5: Conclude
Article 34 TFEU. What does it say?
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between MSs.
Definition of goods?
Anything that can be ‘valued in money’ and are ‘capable of forming the basis of commercial transaction’ (Commission v Italy (Art Treasures) [1968] - Italian law placed a licence system and progressive taxation on exports of items of artistic and historical interests. Commission asked them to abolish this.)
What is a quantitative restriction?
Riseria Luigi Geddo v Ente Nazionale Risi [1973] - ECJ defined quantitative restrictions as: “measures which amount to a total or partial restraint of, according to circumstances, imports, exports or goods in transit.”
a. Quota system
b. Outright ban (e.g. ECJ ruled at end of 2001 that France was in breach of EU law by still not lifting ban on imports of British beef)
Dassonville [1974] - Facts
Belgium had a rule preventing the sale of products such as Scotch Whiskey without a certificate of authenticity. Trader purchased whisky in France where no such measure existed and so made his own certificate of authority. Trader accused of forging & held by Belgian court to be in breach of the law. Trader says this is a QR. Referred to ECJ. HELD - imports of Scotch whisky from France to Belgium being prejudiced. Easier requirements to meet if they come from original country.
Definition from Dassonville of MEQR
All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as MEQRs.
Commission v Ireland (Buy Irish Campaign) [1982]
Government argued that Irish Goods Council was a private company and not therefore the state. Argument failed as members of management committee appointed by govt and had public subsidies. Campaign did not actually impede the sale of non-Irish goods in Ireland. However, Article 34 only requires the potential to affect trade.
Non-binding state measures can influence the conduct of traders and be caught by prohibition
Commission v UK (Re UHT Milk)
Licensing requirement in order to be imported can be an MEQR. Facts: UK law stated that UHT milk could only be imported into the UK with a licence. HELD - this was MEQR since it could cause delay
AND
Requirement to repackage milk in UK dairies - could only be sold by licenced dealer who had packed milk in a UK dairy - Requirement an MEQR since it led to extra expense and delay which in practice = total prohibition on import
Irish Souvenirs [1983]
Requirement that certain goods from abroad have country of origin or word ‘foreign’ = MEQR
Origin Marking of Retail Goods
Requirement to Mark origin of product - ECJ believed this would encourage UK consumers to buy UK goods
Commission v France (Angry Farmers)
Failure by govt to take action against anti-imports protest. Failure by French authorities to take action against French protesters who were waging a violent campaign against imported goods (intercepting lorries, destroying their cargo etc. HELD - Failure to act was an MEQR)
What is a selling arrangement?
Not MEQR as relates not to requirements of goods themselves but to selling arrangements
Keck and Mithouard: Under what circumstances will Art 34 not apply to laws on selling arrangements?
so long as:
i. The law applies to all traders; and
ii. The law affects domestic and imported goods in the same way;
Punto Casa v Capena
ECJ held that Art 34 had no application where the law related to opening hours
Commission v Greece ‘Baby MIlk’
Where it can be sold - law provided baby milk only bought in pharmacies was selling arrangement
Hunermund
Restrictions on advertising [Pharmacists prevented from advertising goods outside shops]
Leclerc
French ban on fuel ads on French TV - SA because the law affected French fuel in the same manner as imported fuel.
Presumptions of selling arrangement can be rebutted: Gourmet International:
Swedish ban on alcoholic drink ads in magazines - MEQR because it adversely affected imports, as people would be more likely to buy Swedish drinks out of habit if ads were not allowed.
Presumptions of selling arrangement can be rebutted: Schutzverbrand [2000]
Law requiring Austrian butchers, bakers and grocers selling from mobile shops to have a local permanent. Held to have an adverse affect on importers, made access to Austrian market difficult without big Capex.
Presumptions of MEQR
Restrictions on presentation/packaging (Mars case [1995] - Germany argued that Mars wrappers saying ‘10% extra’ took up more than 10% space, therefore misleading to consumers. Mars were made to repackage their bars. This was MEQR.
Clinique case - Germany tried to make Clinique change their name to Linique, arguing that Clinique suggested medical properties - MEQR, not merely selling arrangement
PRINCIPLE OF MUTUAL RECOGNITION
From para 14 of Cassis de Dijon - a product lawfully sold in one MS should be free to move and be sold in another MS.
