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EU Law > 3 - Free Movement of Goods 2: Articles 34-36 > Flashcards

3 - Free Movement of Goods 2: Articles 34-36 Flashcards

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1
Q

What are the articles concerning the non fiscal barriers to free flow of goods between Member States?

A

Articles 34, 35, 36 TFEU

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2
Q

Basic example of non fiscal barriers

A
  • Bans by MS on importation of particular goods from other MS
    Quotas
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3
Q

What does Article 34 TFEU focus on?

A
  • Restrictions on imports

Principal entity it binds are MS

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4
Q

In which case was Article 34 applied to quasi public bodies?

A
  • R v Royal Pharma society of GB ex parte Association of Pharma Importers
  • Article 34 applies to measures adopted by the body responsible for regulating the pharma profession in UK.
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5
Q

Who remains outside the ambit of Article 34 TFEU?

A
  • Purely private bodies and individuals
  • But Commission v Ireland - MS cannot circumvent their obligations under a34 by relying on private company
  • Commission v France “spanish strawberries” - MS in breach of obligations under a34 when it fails to take measures to prevent free movement of goods being obstructed by private individuals.
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6
Q

What is prohibited by Article 34 TFEU?

A
  • Quantitative restrictions

- Measures having equivalent effect to qualitative restrictions (MEQRs)

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7
Q

Which case defined “quantitative restrictions?” what happened?

A
  • Geddo v Ente Nazionale Risi

- “measures that amount to a total or partial restraint of importants, exports or goods in transit.”

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8
Q

What is a classic example of a quantitative restriction and what case did this arise in?

A
  • Ban on imports
  • R v Henn and Darby
  • Ban on porn imports into the UK - D’s were convicted of violating the relevant statutory offence.
    Held: statutory offence breached Article 34 because it banned import of the material
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9
Q

What is the most extreme quantitative restriction?

A
  • A ban is the most extreme
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10
Q

What is the most extreme quantitative restriction?

A

A ban is the most extreme

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11
Q

What apart from bans constitute quantitative restrictions in violation of Article 34?

A
  • Quotas on imports
  • E.g. a licensing system that only allows importers to import specific quantity of product
  • International Fruit Company NV v Productshap voor Groenten
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12
Q

What cases the most harm to the free movement of goods?

A
  • Measure constituting a quantitative restriction.

- Only way it can be lawful is if it can be justified on grounds of a36. (list that a34 can be derogated from)

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13
Q

What are some examples of MEQRs - measures having equivalent effect?

A
  • Disguised barriers to trade
  • National rules that regulate the physical requirements that a product has to satisfy, e.g. shape / packaging before it can be sold to the public
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14
Q

What are the 2 sources that have defined how EU law defines MEQRs?

A
  1. Directive 70/50

2. Case: Procureur du Roi v Dassonville

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15
Q

What are the characteristics of Directive 70/50?

A
  • Divided MEQRs into 2 groups:

- Distinctly & indistinctly applicable measures

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16
Q

What are distinctly applicable measures under directive 70/50?

A
  • Measures that don’t apply equally to domestic + imported goods.
  • Discriminate against imports
  • They make importation more difficult or costly relative to domestic product.
  • E.g. national rules that demand higher standards from imported goods.
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17
Q

What are INdistinctly applicable measures under directive 70/50?

A
  • Apply to both domestic + imported goods
  • Without drawing distinction between them - article 3 directive 70/50
  • Can place imported goods at disadvantage in practice but not always
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18
Q

Explain the case of Procureur du Roi v Dassonville?

A
  • Defined MEQR
  • Trading rules enacted by MS that can hinder intra community trade
  • Created the Dassonville formula.
  • Trading rule must be capable of hindering trade between MS to be MEQR
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19
Q

Rewe-Zentral AG v Bundesmonopolverwaltung

A
  • Held: indistinctly applicable measure relating to alcohol content was MEQR
  • Prohibited by article 34 TFEU
  • Important to have a distinction between distinctly + indistinctly applicable measures because defences for each category differ
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20
Q

Commission v Ireland “Buy Irish”?

A
  • This case widened the concept of an MEQR under Article 34 TFEU
  • Courts made it clear that there is no need for trade between MS to have actually been hindered so long that there is chance for intra community trade to be hindered.
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21
Q

Commission v France (Spanish Strawberries)

A
  • Held - failure of France to take measures to prevent private individuals using violence to obstruct the free movement of goods was also an MEQR
  • This included failure to mount criminal prosecutions + failure of french police to be present.
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22
Q

What are further court examples of MEQRs?

A
  1. Imposing additional requirements on imports
  2. Restricting channels of imports
  3. National rules giving preference to domestic goods
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23
Q

Examples of imposing additional requirements on imports as an MEQR?

A
  • Dassonville = good illustration
  • Belgian law
  • Needed goods bearing destination of origin e.g. Scotch whisky, to carry certificate of origin.
  • Father + son did not have cert of origin and forged certificates as they were hard to get
  • Held: the requirement to get certificates of origin was MEQR if they could only be obtained with great difficulty.
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24
Q

Examples of national rules giving preference to domestic goods?

A
  • Example: Buy Irish case / “Irish Souveniers case”
  • Irish g’ment launched campaign to promo Irish goods.
  • After campaign amount of imports actually increased
  • Held: campaign was designed to increase proportion of Irish goods sold in Ireland at expense of imports
  • MEQR bc had the potential to affect volume of imports into Ireland from other MS
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25
Q

What happened in Irish Souvenirs case?

A
  • Irish rules needed imported jewellery to have motifs to show that they were Irish
  • And to say “foreign” if not from Ireland
  • Held: buyers do not need to know where product was from
  • Rules - MEQR violating Article 34
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26
Q

What was first established by Regulation 1151/2012 (previously Regulation 2081/92)?

A
  • EU scheme for ensuring that agricultural products and foodstuffs which originated from particular place
  • Retain right to be identified with that place / region.
  • Provides for granting of PGI protected geographical indication.
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27
Q

What are PGI / PDOs?

A
  • Protect particular method of manufacture e.g. for Blue stilton cheese
  • Granted to products whose qualities / attributes are linked to their geographical origin - parma ham / feta cheese / Melton Mowbray pork pies, Kalamata olives, Dortmunder Bier
  • Only products which have been granted PGI / PDO status are able to use product name protected by that status.
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28
Q

What does PGI / PDO stand for?

A
  • PGI = Protected Geographical Indication

- PDO = Protected designation of Origin

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29
Q

Do the measures of an MEQR have to be distinctly applicable? What is the case authority for this?

A
  • Dassonville made no reference to measures having to be distinctly applicable.
  • All they have to do is hinder trade.
  • Indistinctly applicable measures can also be prohibited by a34 TFEU.
  • Confirmed by cassis de dijon.
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30
Q

What happened in the case of Cassis de Dijon?

A
  • German law
  • Specified minimum alcohol level of 25% for fruit liquer.
  • Indistinctly applicable because it applied equally to domestic + imported liquers
  • Had effect of impeding the importation of french cassis which had content of 15-20%.
  • Held: german requirement amounted to an MEQR.
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31
Q

What are the 2 contradictory principles in Cassis De Dijon?

A
  1. Presumption of mutual recognition

2. Principle of mandatory requirements

32
Q

What are the 6 derogations that are provided by Article 36 TFEU?

A
  1. Public morality
  2. Public policy
  3. Public security
  4. Protection of health and life of humans / animals / plants
  5. Protection of national treasures possessing artistic / historic value
    Protection of industrial and commercial property
33
Q

When can Article 36 derogations NOT be relied upon?

A
  • If measure employed by MS = arbritary discrimination / disguised restriction on trade.
  • Any measure adopted by MS to get objectives set out in A36 to be proportionate
  • Proportionate = both necessary and suitable to get objective pursued by derogation
34
Q

Explain the Article 36 derogation of “public morality?” what are the key cases?

A
  • Henn and Darby: ban on porn imports into the UK, UK relied on public morality.
  • Conegate v HM Customs & Excise Commissioners - was held that derogation was not available to the UK. Prevention of import of German “love love” dolls. Hard for UK to make “public morality” argument because the same items were produced in the UK. Therefore arbitrarily discriminated against imported goods.
  • Both emanated from the UK
35
Q

Explain the Article 36 derogation of “public policy?” what are the key cases?

A
  • R v Thompson, concerned Article 35 (re restrictions on imports)
  • UK ban on the export of silver coins in order to stop them being melted/ destroyed.
  • Accepted that the ban on exports stemmed on need of state to protect the right to mint coinage.
  • Fundamental interest of the state
    1. Export ban linked to equivalent band on silver coins being melted / destroyed
    2. Right to mint coinage involved fundamental interest of society
36
Q

When did the courts REJECT the public policy article 34 derogation?

A
  • Cullett v Centre Leclerc Toulouse: links with public security.
37
Q

Explain the Article 36 derogation of “public security?” what are the key cases?

A
  • Campus Oil v Minister for Industry and Energy
  • Only oil refinery in Ireland was bought by Irish State bc foreign owners annouced their intention to close it.
  • Requirement for importers of petroleum products to get minimum 35% of their total requirements from State owned oil refinery at fixed prices
  • Held - this was MEQR
  • But was capable of being justified on grounds of public security
  • Bc petroleum products are of fundamental importance for the existence of state since its institutions/public services/ survival depends on them.
  • Interruptions of supplies can seriously affect public security as result.
38
Q

Which case can “campus oil” be contrasted with and what are the facts? - why did this fail on Public Security derogation?

A
  • Commission v Greece
  • Greek law gave Greeks the right to import and refine petroleum products
  • Distributers in greece had been required to get their supplie only from Greek State.
  • Measures infringed article 34 TFEU?
  • Essential to guarantee a regular supply of petroleum products
  • Held: measures were disproportionate
39
Q

Case where public security derogation failed?

A
  • Cullet v Centre Leclerc Toulouse

- Started to sell petrol at below min cost set by French law

40
Q

Explain the Article 36 derogation of “protection of health and life of humans / animals / plants?” what are the key cases?

A
  • Most frequently used derogation
  • Commission v Germany (Beer Purity)
  • Ban of additives in beer failed because ban covered additives used in other MS and were not a proven risk to health
  • Ban was therefore disproportionate
41
Q

Criminal Proceedings Against Sandoz BV?

A
  • Courts accepted a ban on food containing vitamins (museli bars) with no authoritsation
  • Was justified
  • If excessive consumption of vitamins was harmful, but scientific evidence had not been able to determine at which quantities they became harmful.
42
Q

Commission v UK (Imports of Poultry Meat)

A
  • Justify ban on imports of poultry meat
  • On grounds of need to control Newcastle disease in poultry
  • Rejected because real reason for the ban was to protect British rodcers against imports from other MS
  • Ban imposed on time for christmas following a big rise in imports in UK of these products
  • Health / life derogation in article 36
43
Q

Criminal proceedings against Bluhme?

A
  • Article 36 - derogations for protecting life and health of animals and plants
  • Prohibition on keeping any bees apart from certain breed
  • Justified under derogation of to protect the Laeso bee, had certain characteristics and under threat of disappearing.
  • Maintenance of biodiversity.
44
Q

PreussenElektra AG v Schleswag AG

A
  • Derogation in Article 36: extends to wider forms of environmental protection
  • German legislation
  • Electricity distribution undertakings to get electricity at fixed minimum prices
  • Made in certain area of Germany that was renewable.
  • Held: policy was justified because it was designed to protect health and life of humans, animals and plants
45
Q

Explain “protection of industrial and commercial property”?

A
  • Extent to which a domestic traders IP rights e.g. trademarks and copyrights can be employed by that trader to exclude importing traders presence in domestic product.
  • Monitors exercising of IP rights
46
Q

What is the defence against QRs/ MEQRs that is not one of the 6 derogations in Article 36 TFEU?

A
  • Mandatory Requirements. Can justify MEQR on grounds not in Article 36 TFEU.
  • Explained in Dassonville.
47
Q

Which case established “Mandatory Requirements” defence?

A
  • Cassis de Dijon case
  • German law which set minimum alcohol level of 25% for fruit liquers.
  • Restriction = indistinctly applicable because it applied equally to domestic and imported goods.
  • Held: goods that have been lawfully produced + marketed in 1 MS can be marketed in another MS without incurring further restriction.
  • This is “presumption of mutual recognition”
48
Q

What is the presumption of mutual recognition?

A
  • When goods that have been lawfully produced + marketed in one MS
  • Can be marketed in another MS without incurring further restriction
  • Indistinctly applicable MEQR can be justified where it is necessary to satisfy mandatory requirements.
49
Q

What were the 2 arguments used to justify MEQR in Cassis de Dijon?

A
  1. Public health argument - min alcohol rule prevents alcoholism - lower percentages will induce alcohol tolerance
  2. Protection of consumers against unfair practices.
    • Was decided that German government in this case could not point to mandatory requirement of sufficient force to justify MEQR.
50
Q

Criminal Proceedings Against Gilli and Andres?

A
  • Mandatory requirements can only justify indistinctly applicable MEQRs
51
Q

What happened in the case of Walter Rau Lebensmittelwerke v de Smedt PvbA

A
  • Application of Cassis de Dijon principles
  • Belgian case - Belgian legislation required all margarine sold in Belgium to be sold in cubic packages irrespective of the origin of the margarine.
  • Held: this was an MEQR bc made sale of imported margarine more difficult by requiring producers from other MS to package their margarine in special packs just to be able to sell it in Belgium.
    • Had practical effect of ensuring that there was basically no marg of foreign origin on Belgian market.
  • Courts will balance mutual recognition principle against any mandatory requirements.
52
Q

Commission v Italy (Relabelling of Cocoa products)

A
  • Application of the Cassis de Dijon principles
  • Italian law - said that cocoa and choc products that contained vegetable fats had to be sold as “chocolate substitute”. “Substitute” - may infer that products are inferior.
  • Held: this was MEQR
  • Forced foreign manufacturers of such products to use different sales name on packaging from that which they used in MS in which products were manufactured.
  • Therefore incurred more packaging costs - this was liable to obstruct trade from MS.
53
Q

What are the original mandatory requirements?

A
  1. Effectiveness of fiscal supervision
  2. Protection of public health
  3. Fairness of commercial transactions
  4. Defence of the consumer
    • new ones such as “protection of cultural activities”
54
Q

What happened in the case of Cine SA v Federation National des Cinemas Francais?

A
  • French law
  • Banned sale / hire of videos of films during the first year of their release.
  • Was held to be an MEQR
  • This was justified as being necessary to encourage French public to go to cinema
  • Was proportionate and applied equally to domestic and imported products.
55
Q

Commission v Denmark - “Disposable Beer Cans”?

A
  • Laws required drinks to be produced in standard size containers for recycling
  • Justified on basis that they proportionally met the objective of protecting the environment
  • Presumption of mutual recognition as being legitimately rebutted.
56
Q

What happened in the case of Schmidberger v Republic Osterreich?

A
  • Balance of mandatory requirements and treaty obligations
  • Austrian government
  • Was the first MS government to use “protection of fundamental rights as a justification for restricting a Treaty freedom”
  • Bc it allowed a 1 day environmental demonstration to temporarily close the Brenner motorway which was a major trade route via Austria
57
Q

Preussen Elektra v Schleswag AG?

A
  • There is a limit to how far CoJ is prepared to extend scope of mandatory requirements
  • German law
  • Required electricity distribution undertakings to purchase at fixed minimum prices electricity produced from renewable energy sources in their area of supply in Germany.
  • Held: this law was designed to protect the health and life of humans, animal and plants - therefore fell within Article 36 derogation.
58
Q

Are selling arrangements MEQRs?

A
  • Court of justice was initially inconsistent about it
  • In several cases it was hled that they could hinder inter-state trade
  • Criminal proceedings Against Oosthoek Uitgeversmaatchapp BV
59
Q

What happened in the case of Criminal Proceedings Against Oosthoek Uit__?

A
  • Dutch law
  • Prohibited free gifts being offered or provided within a commercial activity.
  • Legislation which restricts prohibits advertising and sales promotions might reduce volume of imports by adversely affecting the opportunities for the imported products to be marketed.
  • Held: the Dutch ban on free gifts was justified on grounds of consumer protection / fair trading, may mislead consumers to the real prices of products + distort competition conditions.
60
Q

What happened in the case of Torfaen Borough Council v B & Q plc?

A
  • Selling arrangement was held to be MEQR
  • British law - required most shops to be closed on Sunday. Some DIY stores started to open on sundays. Argued that closing on sundays was an MEQR.
  • Held: closing on Sundays was an MEQR because by stopping goods being sold on a Sunday - it impeded imports from other MS as less would be sold.
  • Capable of being justified on socio-cultural grounds, Sunday was special.
  • Settled on Stoke on Trent City Council & Norwich Council v B&Q. reaffirmed that Sunday trading rules were MEQRs but they were proportionate restriction justified on sociocultural grounds
61
Q

Criminal Proceedings Against Keck and Mithouard?

A
  • Prosecution of 2 supermarket managers for selling goods at a loss in contravention of French law.
  • Argued that this law was indistinctly applicable MEQR.
62
Q

Under what 2 conditions do the Cassis principles continue to apply to national rules that law down certain requirements on products?

A
  • Not considered MEQRs as long as they fulfilled 2 conditions:
    1. Applies to all affected traders operating within national territory
    2. Affect in the same manner in law + in fact the marketing of domestic and imported products.
  • This was the position in Keck.
63
Q

What happened in Criminal Proceedings Against Tankstation t’Heukste vod and JBE Boermans?

A
  • There were a number of selling arrangements as falling outside Article 34
  • Dutch rules regarding closure of all petrol stations at night
  • Applies to all traders operating in national territory - did not fall within Article 34.
64
Q

Punto Casa SpA v Sindaco del Commune di Capena

A
  • Sunday trading rules
  • Fell outside ambit of Article 34
  • Under Keck test did not fall within Article 34 in the first place.
65
Q

What happened in Fachverband der Buch un Medienwirtschaft v LIBRO Handelselgesselschaft mbH

A
  • Example of a case where selling arrangements have failed or have been held to have capable of failing this test
  • Austrian law set minimum prices - for imported German language books
  • Defence was that this rule was applied to both imports / domestic books without distinction.
  • Held: this was an MEQR - because part of the law only applied to imported books + prevented importers from setting prices according to conditions in the import market.
  • Aruged that books = cultural assets and fell under the a36 “national treasures” derogation.
  • Failed on grounds of proportionality.
66
Q

What happened in the case of Konsumen v De Agostini (Svenska)

A
  • Keck test had restrictions on advertising
  • Swedish ban on TV advertising directed and children under age 12 + ban on misleading ads’s for skincare products and detergents.
  • Court accepted that these restrictions were selling arrangements
    • Ban DID apply to all traders operating within the territory.
    • Ban did not necessarily affect all traders in the same manner in law
67
Q

Konsumentombudsmannen v Gourmet International

A
  • Swedish law
  • Banned advertising of alcoholic drinks on radio and TV and in magazines unless mag was distributed solely at point of sale.
  • Magazine had ad’s for alcohol in breach of this legislation
  • CoJ held: this type of selling arrangement fell within a34.
  • Impeded access by foreign producers to the alcoholic beverage market more than domestic producers because consumers would be more familiar with the existing domestic goods.
  • = indistinctly applicable MEQR.
68
Q

Herbert Karner Industrie - Auktionen GmbH Troostwijk GmbH?

A
  • Austrian ban on announcements + notices intended for a large circle of persons. To prevent consumers being given a misleading impression about potential prices auctions of goods bought from insolvent firms.
  • Advertisement for an auction which stated that goods came from an insolvent estate.
  • Held: this was a lawful arrangement which fell outside of a34 TFEU.
  • Did not lay out total ban on all forms of advertising.
  • Merely prohibited adverts in which a large number of people are targetted and only the fact that the goods were from a previously insolvent estate.
69
Q

Verein gegen Unwesen in Handel und Gewerbe Koln Mars GmbH

A
  • Sometimes can be hard to distinguish selling arrangements from product requirements.
  • Sales promotion: Mars sold ice cream bars 10% larger than usual, and marked wrappers 10%
  • German consumer authorities argued this created the impression that then 10% increase was free + graphical impression made it seem even bigger.
  • Held: restriction was not a selling arrangement but was a product requirement as it related to the wrappers which were not part of the product. Manufacturer would have to change wrappers and thereby incur additional costs.
70
Q

Vereinigte Familiapress Zeitung V Bauer Verlag

A
  • Austrian Unfair competition Act
  • Prohibited sale of newspapers and magazines which contained competitions giving big money and prizes.
  • German magazine with a crossword puzzle - those who successfully did it were entered into a prize draw.
  • The prohibition was a selling arrangement bc competitions = merely a method of sales promotion.
  • Held: was a product requirement because competition appeared in the magazine itself and the restriction would require the contents of the magazine to be altered.
  • This was an MEQR.
71
Q

National Raad van Dierenkwekers v Belgium?

A
  • Gives the types of restrictions which may now be considered MEQRs has been provided by the Court of Justice.
72
Q

What was held in Commission v Italy (Trailers)?

A
  • Held that MEQRs were not confined to measures which have discriminatory object or effect
  • And to indistinctly applicable product requirements
  • But also consist of any other measure which hinders the access to the market of a MS of products originating in other MS.
  • Concluded that a prohibition on use of 2/3/4 wheel motorcycle to tow trailers.
73
Q

Aklagaren v Mickelsson & Roos?

A

Aklagaren v Mickelsson & Roos?

74
Q

Explain Article 35 TFEU?

A
  • Restrictions on exports.
  • Article 35 is mirror image except that prohibition is directed at exports and not imports.
  • Prohibits quantitative restrictions and MEQRs in relation to exports.
  • Less case law for Article 35 than 34 because MS generally encourage exports in their own interests
75
Q

What happened in the case of Procurer de la Republic v Les Sieurs Bouhelier?

A
  • French law, requires exports of watches to be authorised by export licenses, or to be have standard certificates issued by French technical centre for industry.
  • This was to guarantee quality standards.
  • No equivalent requirement for watches sold in France.
  • Held: this was breach of Article 35
  • Arbitrary discrimination because the standards only applied to exported watches and not to those marketed in France.
76
Q

What happened in the case of P.B. Groenveld BV v Produktschap voor Vee en Vlees?

A
  • Dutch law prohibited all manufacturers of meat products from having horsemeat in stock, to make sure that horsemeat was not accidentally exported to places where it is banned.
  • This is indistinctly applicable
  • Because it applied to all such manufacturers irrespective of whether their meat products were to be marketed within Netherlands or to be exported from the Netherlands.
  • Held: such a measure was not regulated by Article 35.
  • Only apply to measures that have as their specific object or effect restriction of patterns of exports.
77
Q

Criminal proceedings against Gysbrechts?

A
  • Indistinctly applicable measures imposed by MS of export CAN sometimes place exported goods at disadvantage.
  • Some indistinctly applicable measures can constitute MEQRs under Article 35 when they place exported goods at disadvantage.
  • Gysbrechts was founder/manager of Belgian company, which specialised in sale of food supplements
  • Majority of sales were online sales
  • Company required credit card details to be provide by online customers when placing orders if they is how they intended to pay
  • Held: Belgian prohibition deprived traders of efficient way of guarding against non-payment - especially when company had undertaken not to use the credit card details before expiry date of period for withdrawal.
  • Constituted an MEQR on exports under Article 35 TFEU.

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