Article 34-36

Question 1

Article 34 TFEU

Answer 1

Prohibits quantitative restrictions and Measures which have an equivalent effect (MEQRs).

Question 2

Quantitative Restriction

Answer 2

‘Measures which amount to a total or partial restraint of (according to the circumstances) imports, exports or goods in transit’.
Geddo

Question 3

MEQR

Answer 3

‘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 MEQRs’.
Dassonville

Question 4

Measures

Answer 4

Includes laws and regulations enacted by member states.

Question 5

Directive 70/50

Answer 5

Provides a list of MEQRs and categorises them as distinct or indistinct.

Question 6

Distinctly applicable measure

Answer 6

National rules which only apply to imports.

Question 7

Indistinctly applicable measure

Answer 7

National rules which apply to both imports and domestically-produced goods but have the potential to hinder or frustrate the free movement of goods.

Question 8

Cassis de Dijon

Answer 8

EU introduced two principles here to make it easier to identify indistinctly applicable measures:

(i) The rule of reason
(ii) The rule of mutual recognition

Question 9

Rule of reason

Answer 9

Can the restriction satisfy the non-exhaustive list of mandatory requirements:

(i) Public health (Rewe-Zentral)
(ii) Protecting culture (Cenetheque)

Question 10

Mutual recognition

Answer 10

If the goods have been lawfully introduced in one member state, then there should be no reason as to why they should not be introduced into the one in question.

Criminal Proceedings Against Prantl

Question 11

What did Keck do?

Answer 11

Revisited MEQRs, by introducing the concept of product requirements and selling arrangements.

Question 12

Product Requirements

Answer 12

Relate to the composition, packaging, presentation or generic designation of products.

Question 13

Selling Arrangement

Answer 13

Measures imposed by member states relating to the way the products are sold or marketed.

Question 14

Examples of a selling arrangement

Answer 14

Prohibiting pharmacies from advertising their products outside of their premises.
R v Hunermund

Prohibiting TV ads for certain products
Leclerc-Siplec

Question 15

Examples of a product requirement

Answer 15

A requirement to individually package chewing gum dispensed by a vending machine.

Schwarz

Question 16

Derogations of Art 36

Answer 16

Public Morality
Public Policy
Public Security
Protection of Life/Health of humans, animals or plants
Protection of national treasures
Protection of industrial and commercial property

Question 17

Protecting Public Morality (Derogation)

Answer 17

R v Henn and Darby (prohibition on porn was justified)

Question 18

Protecting Public Policy (Derogation)

Answer 18

R v Thompson (Restricted exportation of collector’s coinage)

Question 19

Protecting IP (Derogation)

Answer 19

Terrapin

Question 20

Criminal Proceedings Against Prantl

Answer 20

Import of Italian wine into Germany was normally restricted. It was eventually allowed because it was legally marketed in Italy

Question 21

Plan for an Art 34 Prollam Q

Answer 21

• Identify what Article 34-36 does
• QR or MEQR
• (if MEQR) then ask if Distinct or Indistinct
• (if distinct) May be justified derogations listed in Art 36
• (if indistinct) May be justified under Cassis
• If it doesn’t pass Rule of Reason use Keck
• Product Requirement or Selling Arrangement?
• Product Requirements Breach Art 34

Question 22

Why do product requirements breach Art 34?

Answer 22

“Any alteration regarding the product itself imposes a double burden on the imported goods, and therefore constitutes an obstacle to the FMOG”.

Question 23

Why do selling arrangements not breach Art 34?

Answer 23

They do not impose a double burden and therefore do not stand in the way of FMOG.

Question 24

Protecting Public health

Answer 24

Inspection requirement on imported apples was justified because of the risk to health from something not present in domestic apples.

Rewe-Zentral