Article 34-36 Flashcards
Article 34 TFEU
Prohibits quantitative restrictions and Measures which have an equivalent effect (MEQRs).
Quantitative Restriction
‘Measures which amount to a total or partial restraint of (according to the circumstances) imports, exports or goods in transit’.
Geddo
MEQR
‘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
Measures
Includes laws and regulations enacted by member states.
Directive 70/50
Provides a list of MEQRs and categorises them as distinct or indistinct.
Distinctly applicable measure
National rules which only apply to imports.
Indistinctly applicable measure
National rules which apply to both imports and domestically-produced goods but have the potential to hinder or frustrate the free movement of goods.
Cassis de Dijon
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
Rule of reason
Can the restriction satisfy the non-exhaustive list of mandatory requirements:
(i) Public health (Rewe-Zentral)
(ii) Protecting culture (Cenetheque)
Mutual recognition
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
What did Keck do?
Revisited MEQRs, by introducing the concept of product requirements and selling arrangements.
Product Requirements
Relate to the composition, packaging, presentation or generic designation of products.
Selling Arrangement
Measures imposed by member states relating to the way the products are sold or marketed.
Examples of a selling arrangement
Prohibiting pharmacies from advertising their products outside of their premises.
R v Hunermund
Prohibiting TV ads for certain products
Leclerc-Siplec
Examples of a product requirement
A requirement to individually package chewing gum dispensed by a vending machine.
Schwarz
Derogations of Art 36
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
Protecting Public Morality (Derogation)
R v Henn and Darby (prohibition on porn was justified)
Protecting Public Policy (Derogation)
R v Thompson (Restricted exportation of collector’s coinage)
Protecting IP (Derogation)
Terrapin
Criminal Proceedings Against Prantl
Import of Italian wine into Germany was normally restricted. It was eventually allowed because it was legally marketed in Italy
Plan for an Art 34 Prollam Q
- 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
Why do product requirements breach Art 34?
“Any alteration regarding the product itself imposes a double burden on the imported goods, and therefore constitutes an obstacle to the FMOG”.
Why do selling arrangements not breach Art 34?
They do not impose a double burden and therefore do not stand in the way of FMOG.
Protecting Public health
Inspection requirement on imported apples was justified because of the risk to health from something not present in domestic apples.
Rewe-Zentral
