Article 34/35 Flashcards
Article 34/35 TFEU
The prohibition of quantitative restrictions and measures having equivalent effect.
Concerned with non-pecuniary measure which act as barriers trade
Article 34 TFEU
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states
Article 35 TFEU
Quantitative restrictions on exports and all measures having equivalent effect shall be prohibited between member states
Article 34 TFEU
Sets out the prohibition on quantitative restrictions and measures having equivalent effect on imports
R V Royal Pharmaceutical Society of Great Britain - scope
Article TFEU applied to the royal pharmaceutical society and organisation which regulated the conduct and set standards for chemists
Ditle v Bluhme - scope
Legislative measure prohibiting the keeping on the Danish island of Laeso any species of bee other than the brown bee. Considered as a measure having equivalent to a quantitative restriction despite the fact that the measure only applied to part of the national territory
Quantitative restrictions
Measures which limit the import or export of goods by reference to an amount or value
Geddo v Ente Nazionale Risi
Measures which amount to a total or partial restrain of according to the circumstances imports, exports or goods in transit.
R V Henn and Darby
A ban on the importation of pornographic material amounted to a quantitative restriction under Article 34 TFEU
Dassonville Formula
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 measures having an effect equivalent to quantitative restrictions
Dassonville Facts
Belgian traders acquired a consignment of scotch whisky in free circulation in France and imported it into Belgium without being in possession of a certificate of the origin from British Custom authorities, thereby infringing Belgian rules .
Requirement by a MS of a certificate of authenticity which is less easily obtainable by importers of an authentic product which has been put into free circulation in a regular manner in another member state than by imported of the same product coming directly from the country of origin constitutes a measure having an effect equivalent to a quantitative restriction as prohibited by the treaty.
Directive 70/50
Transitional measure introduced to provide guidance during transitional period when the common market was becoming established.
It no longer applies but indicates the commissions view of MEQR’s and shows clear intention to catch both those measures that provide different treatment for domestic and imported goods and those which applied to them equally.
Distinctly applicable measures
Measures which only apply to imported goods
Article 2 points on directly applicable measures
Measures which make importation more difficult or costly than the disposal of domestic production
Subjects imported products only to a condition differing from that required for domestic products.
Example of distinctly applicable measures
Hinder the purchase by private individuals of imported products only, or encourage require or give preference to the purchase of domestic products only.
and
Require, for imports only, the giving of guarantees
Indistinctly applicable measures
Measures which are equally applicable to domestic and imported products but has a restrictive effect on the free movement of goods
The same objective can be attained by other means without a hinderance to trade
Walter Rau Lebensmittlewerke - Indistinctly applicable measures
A Belgian requirement that all margarine for sale should be cube shaped form or cube shape packing was questioned as to its validity. Did not discriminate between domestic and imported products however still held to be a measure having equivalent effect to a quantitative restriction.
Not considered proportional - more proportional measures would be effective labelling.
International Fruit company v Produktchap
the requirement of an import or export licence would amount to a MEQR even if the granting of such licence was a mere formality.
- goods are effectively banned pending processing of the application
- There is at least in theory the potential for rejection
- Any additional paperwork will result in additional costs which will need to be accounted for in determining the price of the good and this may impact upon the eventual sales figure
Commission v Ireland
Irish legislation required imported goods bearing or possessing characteristics suggesting they were souvenirs of Ireland to bear an indication of the country of origin or the word foreign.
Court of justice held that granting souvenirs imported from other member states access to the domestic market solely on condition that they bare a statement of origin indisputably constitute a discriminatory measure.
Use of reasoning in Dassonville: The potential to hinder trade is clear from the reasoning given. The marketing of such products would be more difficult to comply with the requirements.
Commission v United kingdom (origin marking)
Required retailers to mark goods with country origin and ensure that signs indicating the country of origin was not knocked down, moved or detached during the sales period.
This would have a direct effect of causing retailers to only sell products which already have the country of origin indicated on them which would shift the burden of the order onto manufactures who, eagar to retain their customers would incur larger production costs to orgin mark there products there.
Obligation of member states to ensure free movement of goods
Article 34 TFEU also applies where a member state fails to adopt the necessary measures in order to ensure the free movement of goods even where obstacles are not caused by the state.
Commission v France Case C-265
The commission stated that for more than a decade it ad regularly received complaints concerning the passivity of the French authorities in the face of violent acts committed by private individuals and by protest movements against products from other member states.
CoJ held that the provision requires member states to adopt the measures required in order to deal with obstacles to the free movement of goods which are not caused by the state.
Abstaining from acting against private individuals which are acting against free movement of goods is a positive act.
Schmidberger v Austria
Austrian authorities had implicitly granted environmental protesters permission for a demonstration to take place, the effect of which was to close a motorway for 30 hours. National court made a reference to the court of justice asking questions under Article 267.
Member state did not ban the demonstration which resulted in a major transit route being closed. This was considered as a measure having equivalent effect to a quantitative restriction.
Cassis de Dijon
Required fruit liquers to have a minimum content of 25% if marketed lawfully in Germany.
French Casis only had an alcohol content of between 15%-20% and therefore could not be sold in German market.
Dassonville Dita point
that the justification for a measure which guarantees for consumers the authenticity of products designation of origin is only justified if measures are reasonable and are brought in to prevent unfair practices and should not be a hindrance to trade.
Casiss de Dijon
Principle of mutual recognition - The presumption that where goods have been lawfully produced and marketed in one member state there is no reason why they should not be introduced into another member state.
The rule of reason - Court allows indistinctly applicable measures which could possible be considered an obstacle to movement under the following circumstances.
1 The effectiveness of fiscal supervision
2. The protection of public health
3. The fairness of commercial transactions
4. The defence of the consumer
In Casiss the German argued
the measure was in place to protect public health as low alcohol content beverages may easily induce a tolerance towards alcohol than more highly alcoholic beverages.
Argued that the measure protected the fairness of commercial transaction as the lower alcohol provided a price advantage for the imported products which was unfair.
Scope of the rule of reason
Rule of reason applies to indistinctly measures only.
Commission v Ireland (Importation of Souvenirs) Irish legislation required souvenirs not manufactured in Ireland to bear the label foreign.
the measure only applied to distinctly applicable measures so the rule of reason justifications could not be relied upon as they are confined to indistinctly applicable measures.
Application of the principle of proportionality
In order to satisfy the rule of reason the measures must be no more than is necessary to achieve their aim. If the measure goes beyond what is necessary, it will fall outside Cassis and will therefore be classified as breach of Article 34 TFEU
In Casiss the proposed aim could be met with clearly labelling.
Extension of the mandatory requirements
List of mandatory requirements set out in Cassis under the rule of reason was never articulated as an exhaustive list.
Danish legislation required certain drinks to be sold In demark to be packaged in reusable containers and deposit and return schemes were to be established. Protection to the environment was considered another justification to an indistinctly applicable measure under the principle of rule of reason.
Torfaen Case
Consideration was given to the Shop Act
Limited exceptions prohibited sunday trading in the UK. However, this indistinctly applicable measure was justified under the rule of reason because it was in accord with national or regional socio-cultural characteristics.
Keck Judgement: Selling arrangements
The issue concerned the French rule that prohibiting the sale of goods at loss. It was imposed on selling picon beer. Traders seeked to rely on Article 34 arguing that the measure was equivalent to a quantitative restriction
Keck para 14
In the view of increasing tendency of traders to invoke Art [34] as a means of challenging any rules whose effect it is to limit their commercial freedom the court consider it necessary to re-examine and clarify its case law on this matter
Keck para 15
Rules that lay down requirements to be met by imported goods such as those relating to designation form size composition presentation labelling packaging constitutes a MEE’s unless it can be justified using article 36.
Keck para 16
Selling arrangements do not fall within the scope of article 34 so long as they apply to all 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 those from other member states.
Implications of Keck
Article 34 does not provide a platform for traders to challenge any rules which limit their commercial freedom.
Keck Distinguished between
Product requirements - Presumption of illegality
Selling arrangements - Presumption of legality
Selling arrangements
When, where and how something can be sold will be considered legal unless it can be proven that this selling arrangement unfairly disadvantages the sale of imported goods compared to domestic goods.
Karner
All provisions governing selling arrangements within the meaning of Keck and therefore presumes to be legal.
Example of Keck application
- Greek rule that required milk for infants to be sold only in pharmacies was a selling arrangement and did not breach ARTICLE 34
- Austrain rule required bakers/grocers to have a premise in the locality for the sale of products from a van was a selling arrangement and did not breach Article 34 - Heminest
Dutch rule required all petrol stations to be closed at night was a selling arrangement and did not breach article 34 - Boermans
Static selling arrangements
Rules on the time and place in which products sold - Sunday trading rules
Dynamic selling arrangements
Rules on advertising and sales method
How did the court narrow down the scope of article 34 in Keck
Did this by categorising a measure by a member state as a selling arrangement it will not fall within the scope of Article 34 so long as they apply to all trader operating within the national territory and so long as they affect inn the same manner, in law and in fact the marketing of domestic products and those form other member states
Selling arrangements will be considered to be legal unless they are shown to be discriminatory and not justified under Article 36 or mandatory requirements (rule of reason)
De Agostini
Swedish ban on television advertising of magazine on dinosaurs directed at children under 12. Considered to be a dynamic selling arrangement and despite the presumption of legality this still breached article 34 as it failed the second element of the keck test because it would apply differently to different member states. The court said that television was the only effective form of reaching consumers in Sweden from other MS’s and penetrating the market there so an outright ban on advertising would have a greater impact on products of other Member states.
Docmorris
German rule prohibited online sale of medical products which were allowed to be sold only in pharmacies was contrary to article 34. The rule was not to do with product requirements and more to do with selling arrangements/market requirements. Court held that the internet provides a more significant way to gain direct access to the german market. A prohibition could impede access to the market for products from other member states more than it impedes access for domestic products.
Gourmet
A total ban in Sweden on advertising of alcohol beverages on television, on the radio and in magazines. A total ban is likely to impact others member states differently than it would the nation upholding the ban. A total ban would be hard to be justified.
