5. Free Movement of Goods II: Non-Fiscal Barriers

Question 1

Quantitative Restrictions on Imports (QRs)

Answer 1

QRs: “Measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit” (Geddo v Ente Nazionale Risi).

Restrictions such as:

• BANS (R v Henn and Darby).
• QUOTAS (Int. Fruit Company NV v Produktschap voor Groenten (No. 2)). Only allowed a specific quantity of a certain product.

QRs will breach Art 34 (or 35) unless fall within derogations in Art 36 TFEU.

Question 2

Measures Having Equivalent Effect (MEQRs)

Answer 2

MEQR: “ALL trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade” (Dassonville).

D70/50 made original distinction between DAM and InAM.
- Can be Distinctly or Indistinctly Applicable MEQRs.

Question 3

Distinctly Applicable MEQRs

Answer 3

Discriminate against imports by not applying equally to domestic and imported products.
- (Comm v Ireland (‘Buy Irish’)) extended concept of measure, was a Gov. promo campaign. Also (CvF(Spanish Strawberries)), failure to take appropriate measures also MEQR.

EXAMPLES:

• Restrictions on distribution channels for imports eg. authenticity certificates (Dassonville).
• Imposing additional requirements on imports eg. certificate + sample inspection for MBFstuffs. (Firma Denkavit).
• Giving preference to domestic goods (Comm v Ireland (Buy Irish) + (Irish Souvenirs)).

These will breach Art 34 (or 35) unless they fall within Art 36’s derogations.

Also, R1151/2012 for PGI/PDO.

Question 4

Indistinctly Applicable MEQRs

Answer 4

(CdeD) IndAM also prohibited by Art 34 TFEU.

Apply equally in fact and law to domestic/import products, but have a greater impact on imports (Keck).

EXAMPLES:

• Packaging/presentation regulations (Walter Rau).
• Regulations on pipe standards (Comm v Ireland (Dundalk Water Supply)).
• Prohibitions (Comm v Ireland (Trailers)) and restrictions (Mickelsson and Roos) on product use.

These will breach Art 34 unless they fall within Art 36’s derogations OR the Cassis de Dijon Defence.

Question 5

Selling Arrangements

Answer 5

Arrangements relating to sales (Keck), I.e. When, where, how or by whom a product can be sold.

The KECK TEST: a measure is a selling arrangement (therefore not an MEQR) if it:

1. applies to ALL relevant traders operating in the territory.
2. affects the marketing of domestic/imported products in the same manner in both law and fact.

EXAMPLES permitted:

• Sunday trading rules (Torfaen BC v B&Q) NB before KeckTEST, (Punto Casa) NB sunday trading rules didn’t need to be justified, the test was satisfied .
• Selling at a loss (Keck).
• Rules limiting opening hours (Tankstation).
• Partial advertising bans (Herbert Karner).

Not permitted:

• Prohibition of crosswords in newspaper (Heinrich).
• Book selling below recommended price (Fachverband).
• Outright bans on advertising (De Agostini).

Even if a rule is about selling, still fall within Art 34 if it has differential impoact in law or fact on dom traders + importers (De Agostini), (Gourmet Intenationale). Requirements which have to be met by the products themselves will fall within Art 34 even if relating to sales promotions on or in the product (Mars), (Familiapress).

Question 6

Article 36 TFEU: Derogations

Answer 6

Art 36: “The provisions of Art 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on the grounds of”:

1. PUBLIC MORALITY
   - Permitted (Henn and Darby)
   - Not permitted (Conegate), dolls produced domestically as well as imported.
2. PUBLIC POLICY
   - Permitted, ban on silver coin exporting, mint coinage was a fundamental interest of the state. (R v Thompson).
   - Not permitted, minimum petrol prices (Cullet).
3. PUBLIC SECURITY
   - Permitted, (Campus Oil), was proportionate + necessary.
   - Not permitted (Comm v Greece), was unnecessary + disproportionate.
4. THE PROTECTION OF HEALTH AND LIFE OF HUMANS, PLANTS AND ANIMALS.
   - Objective evidence must generally be provided!
   - Permitted, bee importing ban (Bluhme), minimum energy prices from renewable sources (PreussenElektra), ban on motorbikes w/ trailers for road safety (Comm v Italy (Trailers)).
   - Not permitted, ban on beer additives with little evidence (Comm v Germany (Beer Purity)), ban import of poultry meat was unnecessary (Comm v UK (Poultry Meat)).
5. PROTECTION OF NATIONAL TREASURES (Comm v Italy (Italian Art)).
6. PROTECTION OF INDUSTRIAL AND COMMERCIAL PROPERTY. - typically regarding IP.

Must not ARBITRARILY DISC. OR be a DISGUISED RESTRICTION on trade (Comm v UK (Poultry Meat)), AND must be PROPORTIONATE for the objective (Walter Rau).

Question 7

The Cassis de Dijon Defence

Answer 7

Only applies to Indistinctly Applicable MEQRs (Gilli).

The CdeD TEST: the presumption of mutual recognition is balanced against mandatory requirements. Justified if MRs are more important than the presumption and is also proportionate.
“Overriding reasons relating to the public interest”

Pre. of Mutual Recognition (Verein v Mars).

• goods in lawful circulation one MS are presumed to be marketable in all other MS.
• burden of proof is on the blocking MS.
• –EGs (Walter-Rau), (CvI (Relabelling of Cocoa Products). Show that CoJ will balance PofMR against any MR proposed by a MS.

Question 8

The Cassis de Dijon Defence: Mandatory Requirements

Answer 8

The measures must be necessary to satisfy the MRs of the state, they are NON-EXHAUSTIVE.

• Protection of Public Health (CduD)
• Consumer Protection (CduD)
• Effectiveness of Fiscal Supervision (CduD)
• Fairness of Commercial Transactions (CduD)
• Environmental Protection (Comm v Denmark (Disposable Beer Cans)).
• Protection of Culture (Cinetheque SA).
• Protection of fundamental rights (Schmidberger).

(PreussenElektra), AG Jacobs tried to apply Env. Pro. to DAM, was not accepted. MR still only for IndAM.

The measure must also be NECESSARY and PROPORTIONATE to achieving the objective (Walter Rau).

Question 9

Art 34 TFEU - Who is bound?

Answer 9

Public bodies (i.e. the MS)

but also, Quasi-public bodies (Royal Pharmaceutical Society of GB). MS had conferred regulatory powers upon them.

MS cannot circumvent obligations by relying on a private company (Comm v Ireland (‘Buy Irish’)).

MS also in breach when fail to take necessary/appropriate measures to preserve FMofG against private individuals (Comm v France) (Spanish Strawberries)).

Question 10

Art 35 - Exports

Answer 10

Is a mirror image of Art 34.

DAM (Bouhelier), disc.

Courts reluctant to apply Art 35 to IndAM (Groenveld), measure needs to places goods at a disadvantage.
- Such as in (Gysbrechts).