BPP Study Manual Ch8 - Free Movement of Goods 2

Question 1

Who is bound by Article 34 TFEU?

Answer 1

Member states and public or quasi-public bodies

Question 2

What demonstrates that Art 34 TFEU applies to quasi-public bodies?

Answer 2

Royal Pharmaceutical Society of GB

Question 3

What does Art 34 say?

Answer 3

• Quantative restrictions on imports
• and all measures having equivalent effect
• shall be prohibited between Member States

Question 4

How are quantative restrictions defined?

Answer 4

measures which amount to a total or partial restraint of imports, exports or goods in transport

Question 5

What defined quantative restrictions?

Answer 5

Geddo v Ente Nazionale Risi

Question 6

Give an example of a QR and a case that showed this

Answer 6

• total ban on imports
• Henn and Darby
• total ban on importing hardcore pornography

Question 7

Other than total bans on imports, what else constitutes QRs? Give an example case.

Answer 7

• quotas

- International Fruit Co

Question 8

What are MEQRs? Give some examples

Answer 8

• measures having equivalent effect as a QR; disguised QRs

- e.g. rules that regulate physical requirements that products have to satisfy i.e. in shape or packaging

Question 9

What two sources give information about MEQRs?

Answer 9

• Directive 70/50, though now inoperative

- Dassonville

Question 10

How did Directive 70/50 affect the handling of MEQRs?

Answer 10

• divided into distinctly and indistinctly applicable

Question 11

What are distinctly applicable measures?

Answer 11

• ones that do not apply equally to imported and exported products
• e.g. rules that demand higher standards for imported goods than domestic goods

Question 12

What are indistinctly applicable measures?

Answer 12

• measures that look like they’re equally applicable to domestic and imported goods
• but the effect of the measure disadvantages imported goods by requiring them to satisfy the state’s rules for domestic goods

Question 13

Give an example of an indistinctly applicable measure.

Answer 13

• a national rule that imposes conditions on the packaging or composition of products

Question 14

Give a case involving indistinctly applicable measures.

Answer 14

• Walter Rau
• Belgian statute requiring all margarine to be sold in cubic packages
• addressed to all margarine producers but only Belgian margarine producers sold it in cubic packages already
• treated as an MEQR because disproportionate way to achieve this goal

Question 15

How are MEQRs defined?

Answer 15

• all trading rules enacted by Member States
• which are capable of hindering
• directly or indirectly, actually or potentially
• intra-Community trade

Question 16

What defined MEQRs?

Answer 16

Dassonville

Question 17

How wide is the Dassonville definition of MEQRs? What case showed this?

Answer 17

• extremely wide
• Buy Irish case
• enough that there existed the potential for intra-state trade to be affected

Question 18

What have been classified as distinctly applicable MEQRs in past cases?

Answer 18

• imposing additional requirements on imported goods (Firma Denkavit)
• national rules giving preference to domestic goods ( Buy Irish)
• restricting channels of distribution for imported goods (Dassonville)

Question 19

What have been classified as indistinctly applicable MEQRs in past cases?

Answer 19

• ones involving product characteristics that require importers to have a special production line to make goods specifically for that state e.g. Walter Rau
• public procurement contracts that indirectly favour domestic goods (e.g. Commission v Ireland (Re Dundalk Water Supply) Irish pipes etc.

Question 20

How do defences work in relation to QRs and MEQRs?

Answer 20

• for indistinctly applicable MEQRs, defences can come from Art 36 or from the Cassis de Dijon case

Question 21

What categories of derogation are listed in Art 36?

Answer 21

1) protection of public morality, policy and security
2) protection of health and life of humans, animals or plants
3) protection of national treasures (artistic, historic, or archeological value)
4) protection of industrial and commercial property

Question 22

What must be complied with when MS use derogations?

Answer 22

cannot be relied upon if:

• the measure constitutes arbitrary discrimination
• the article is a disguised restriction on trade
• if measures taken by the MS are disproportionate to their objectives.

Question 23

When was a derogation for public morality allowed? When was it not?

Answer 23

• Henn and Darby
• allowed because the banned pornography was illegal in the UK. Applied equally to domestic and imported goods.
• Conegate
• not allowed because inflatable love dolls were made in the UK too. Did not apply equally to domestic and imported goods.

Question 24

When was a derogation for public policy reasons allowed? When was it not?

Answer 24

R v Thompson
- UK ban on exporting silver coins allowed because states have a need to protect the right to mint coinage.
Centre Leclerc Toulouse
- disallowed because the French government had not proved that they could not handle disturbances caused by allowing lower petrol prices

Question 25

When was a derogation allowed for public security reasons?

Answer 25

• Campus Oil
• requirement for importers of oil to buy some from the Irish government’s refinery allowed because states need their own supplies of important energy resources

Question 26

When was a derogation for the protection of health and life of animals, humans or plants allowed? When was it not?

Answer 26

Santoz
- Dutch refusal to authorise the import of muesli bars with added vitamins allowed because there was no evidence about the vitamins
Beer Purity Case
- German attempt to ban beer that had additives was not allowed because there was little evidence that additives presented a risk to public health

Question 27

When were derogations to MEQRs allowed for environmental reasons?

Answer 27

PreussenElektra

• German requirement for some electricity to be purchased from renewable energy sources allowed as an MEQR
• allowed because it was designed to protect the health and life of humans, animals and plants

Question 28

What two principles derived from the Cassis De Dijon case?

Answer 28

1) presumption of mutual recognition

2) mandatory requirements (rule of reason)

Question 29

What is the presumption of mutual recognition?

Answer 29

• the presumption that goods lawfully produced and marketed in one country should in principle be able to be sold in another MS without further restrictions
• rules which impose a double burden on importers infringe on Art 34 TFEU

Question 30

What case confirmed the decision in Cassis de Dijon?

Answer 30

the Mars case (10% larger Mars bars)

Question 31

How does the mandatory requirements rule work?

Answer 31

• non-exhaustive list

- obstacles can be allowed to satisfy mandatory requirements for policy reasons

Question 32

Give a case where the Cassis de Dijon principles were applied.

Answer 32

Relabelling of Cocoa Products case

• considered presumption of mutual recognition and rejected MEQR as failing the test
• considered mandatory requirements and could not rebut the principle of mutual recognition because Italy failed to persuade the court that there were any relevant policy considerations

Question 33

How was the Cassis decision modified and by what?

Answer 33

Keck

created the distinction between selling arrangements and MEQRs

Question 34

What are selling arrangements?

Answer 34

rules that concern who sells products, and when, where and how products are sold, rather than the physical characteristics of the product itself.

Question 35

What two requirements need to be met for selling arrangements to not be caught by Art 34?

Answer 35

selling arrangement must

1) apply to all affected traders operating within the national territory
2) affect in the same manner in law and in fact the marketing of domestic and imported products

Question 36

Give an example of an instrument that was classified as a selling arrangement.

Answer 36

• opening times in Stoke-on-Trent v B&Q

Question 37

Give an example of a case where an instrument was classified as an MEQR not a selling arrangement.

Answer 37

• Gourmet International Products
• ban on advertising alcohol held not to be a selling arrangement
• total ban on advertising prevented foreign companies from breaking into the market
• therefore did not affect domestic and imported products the same in fact.

Question 38

Why were advertising bans not an MEQR in the Herbert Karner case?

Answer 38

• not a total band
• alternative means of advertising existed
• access to the domestic market for imports was not impossible

Question 39

Why could the advertising in Familiapress not be a selling arrangement?

Answer 39

• preventing advertising of big money prizes in newspaper and magazines
• rule was based on the actual content of products

Question 40

What does Art 35 TFEU aim to achieve?

Answer 40

• same as Art 34 but for exports

- mirror image as Art 34 but only applies to QRs and directly applicable MEQRs