3. Free Movement Of Goods II Flashcards
R v Royal Pharmaceutical Society
Public and quasi-public bodies may be bound by Art 34
Commission v France (Spanish Strawberries)
MS can be liable for not stopping action by private party
Commission v Ireland (Buy Irish)
Campaign to promote Irish goods held to violate Art 34 even though pursued (on behalf of gvt) by private company
R v Henn and Darby
Ban on import of porn into UK held to be a quantitative restriction in breach of Art 34
But Art 36 derogation (public morality) applies
International Fruit Co (No 2)
Licensing system that only allows importers to import specific quantity of product held to constitute quantitative restriction in breach of Art 34
Directive 70/50
Distinction between distinctly applicable MEQRs and indistinctly applicable MEQRs
Commission v Ireland (Irish Souvenirs)
National rules giving preference to domestic goods are distinctly applicable MEQRs
Dassonville
Defines MEQRs: ‘all trading laws enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’
Restricting distribution channels for imported goods is distinctly applicable MEQR
Rewe-Zentral AG (Cassis de Dijon)
German law specifying minimum alcohol content for fruit liqueurs (with effect of impeding import of French Cassis) is an indistinctly applicable MEQR
Two important principles
- Presumption of mutual recognition
- Principle of mandatory requirements
i. Effectiveness of fiscal supervision
ii. Protection of public health
iii. Fairness of commercial transactions
iv. Consumer protection
Conegate
Art 36 (public morality) derogation not available to UK’s ban on import of German love dolls, since also produced in UK
R v Thompson
Art 36 (public policy) derogation applies to UK ban on export of silver coins
Cullett v Centre Leclerc Toulouse
Art 36 (public policy) derogation not available for French law on minimum petrol pricing
Campus Oil v Minister for Industry and Energy
Art 36 (public security) derogation applies to Irish measure requiring importers to buy 35% of petrol from state-owned refinery
Commission v Greece
Art 36 (public security) not available for state’s claim to exclusive marketing of oil products
Commission v Germany (Beer Purity)
Art 36 derogation (public health) not available for Germany’s ban on marketing of beer containing additives, since no evidence pose risk to public health
Sandoz
Art 36 (public health) derogation available for Dutch ban on muesli bars with added vitamins, since dearth of evidence about health risks
PreussenElektra AG v Schleswag
Art 36 (protection of health and life of humans, animals and plants) applies to German law requiring electricity distribution undertakings to purchase electricity produced by renewables
Mandatory requirement
Applies exclusively to indistinctly applicable MEQRs
Cinetheque SA
Protection of cultural activities counts as mandatory requirement
Commission v Denmark (Disposable beer cans)
Protection of environment counts as mandatory requirement
Schmidberger
Protection of fundamental rights counts as mandatory requirement
Walter Rau Lebensmittelwerke
Belgian law requiring margarine to be sold in cubic packages.
Fails proportionality test, so no derogation or mandatory requirement allowed
Commission v Italy (relabelling of cocoa)
No mandatory requirement available for Italian law requiring chocolate with vegetable fat to be described as ‘chocolate substitute’
Keck v Mithouard
Selling arrangements not MEQRs, provided following criteria met
- They apply to all affected traders operating within territory
- They affect in same manner the marketing of domestic and imported products
De Agostini
Swedish ban on TV ads aimed at under 12s fails to pass Keck test - greater impact on imports needing to establish themselves in market
Mars
Any restriction imposed on misleading Mars wrapper would count as product requirement and not selling arrangement - therefore MEQR
Vereinigte Familiapress Zeitungsverlags
Prohibition on sale of newspapers and magazines which contained competitions giving big money prizes held to be a product requirement - therefore MEQR
Geddo v Ente Nazionale Risi
Quantitative restrictions are ‘measures which amounts to a total or partial restraint of imports, exports or goods in transit’
Firma Denkavit Futtermittel v Minister für Ernähgrung
Imposing additional requirements on imported goods counts as MEQR
Commission v UK (Imports of Poultry Meat)
UK ban on poultry production from MS shortly before Christmas held to be disguised restriction on trade and therefore Art 36 derogation not available
Criminal Proceedings against Bluhme
Prohibition on keeping any bees except the Læsø brown be on the island of Læsø held to be justified under Art 36 derogation
Torfaen Borough Council v B&Q
CJEU held (initially) selling arrangements (here Sunday trading rules) can be MEQR
Criminal Proceedings against Tankstation ‘t Heukste vog
Following Keck, Dutch rules regarding closure of petrol stations at night held not to be MEQR
Punto Casa v Sindaco del Commune di Capena
Following Keck, Sunday trading rules held not to be MEQR
Fachverband der Buch end Medienwirtschaft v LIBRO
Austrian law setting minimum price for German language books, part of which applied only to imported books, held to be an MEQR (fails Keck test)
Konsumentombudsmannen v Gourmet International Products
Swedish law banning advertising of alcohol held to be MEQR, since impeded importers more than domestic producers
Herbert Karner Industrie v- Auktionen v Troosteijk
Austrian ban on certain types of announcements and notices held not to be MEQR, since not blanket ban on advertising of goods in question and did not affect imported goods more than domestic goods
Groenveld v Produktschap voor Vee en Vlees
Indistinctly applicable measure regarding exports held not to be regulated by Art 35
