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EU Law > Chapter 3 > Flashcards

Chapter 3 Flashcards

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1
Q

What are non fiscal barriers?

A

Article 34
Article 35
(Article 36)

Bans, Quotas

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2
Q

What is Article 34?

A

‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’

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3
Q

To whom is Article 34 applied to

A

Member States
And Quasi public bodies
- R v Royal Pharmaceutical Society of GB

Not purely private bodes and individuals

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4
Q

What happened in R v Royal Pharmaceutical Society of GB

A

> Article 34 was applied to measures adopted by the body responsible for regulating the pharmaceutical profession in the UK.
Measures adopted by professional bodies, such as the Royal Pharmaceutical Society, on which a Member State has conferred regulatory powers may fall under the scope of Article 34.

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5
Q

When can a MS be in breach of their duties under Article 34?

A

> if they get a private company to do things
Commission v Ireland - Buy Irish
MS cannot circumvent their obligations under Article 34 TFEU
Campaign to promote Irish goods launched by the Irish government
Irish gvt created irish Goods Council - the Irish government could not rely on the fact that the campaign was conducted by a private company in order to escape any liability

Failure to take the appropriate measures
Commission v France - Spanish Strawberries
MS will be in breach of its obligations under Article 34 where it has failed to take necessary measures to prevent the free movement of goods being obstructed by private individuals.
For over a decade, the French authorities had failed to take adequate measures to prevent French farmers engaging in violent campaigns directed at agricultural products from other Member States such as strawberries from Spain and tomatoes from Belgium.
Eg they were attacking wholesalers and retailers

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6
Q

What are quantative restrictions?

A

Geddo

> ‘measures which amount to a total or partial restraint … of imports, exports or goods in transit’.

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7
Q

Examples of quantitative restrictions

A

R v Henn and Darby

  • ban on porn
  • ban on imports

International Fruit Company NV
- Licensing system that only allows importers to import a specific quantity of a product

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8
Q

What are measures having equivalent effect?

A

MEQRs cover a wide range of measures that can be regarded as disguised barriers to trade.

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9
Q

Where do MEQRs come from?

A

Directive 70/50

  • distinctly applicable
  • indistinctly applicable

Dassonville formula

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10
Q

What is the Dassonville formula?

A

‘ ‘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’’

  • initially uncertain as to whether indistinct MEQRs applied
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11
Q

What is the caselaw for DISTINCTLY applicable MEQRs?

A

Firma Denkavit
Dassonville
Buy Irish
Irish souvenirs

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12
Q

What happens in Firma Denkavit?

A

Distinctly Applied MEQR

a) Imposing additional requirements on imported goods

  • milk-based feeding-stuffs could only be imported into West Germany if they satisfied two conditions.
  • a certificate confirming that they had undergone a heating process to destroy any salmonellae
  • Subject to an inspection by a W Germany institute
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13
Q

What happens in Dassonville?

A

Belgian law
- needed a certificate of origin issued by the government of the State in which the goods were produced in order to prove the designation’s authenticity.
- Imported Scotch whiskey
- No certificates so forged
CoJ - requirement to obtain certificates of origin for imported goods was an MEQR as the certificates could only be obtained with great difficulty if the goods were not imported directly from the country of origin.

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14
Q

What happened in Buy Irish?

A

MS cannot circumvent their obligations under Article 34 TFEU
> Campaign to promote Irish goods launched by the Irish government
> Irish gvt created irish Goods Council - the Irish government could not rely on the fact that the campaign was conducted by a private company in order to escape any liability

Distinctly Applicable MEQR

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15
Q

What happened in Irish Souvenirs?

A

Irish rules required imported jewellery that incorporated motifs suggesting that they were souvenirs from Ireland, such as a shamrock motif, to bear an indication of the country in which it was made and the word ‘foreign’.

Distinctly Applicable MEQR

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16
Q

How has the EU overcome Irish Souvenirs?

A

Scheme for ensuring that agricultural products and foodstuffs which originated from a particular place or region and are produced there retain the exclusive right to be identified with that place or region. This was first established by Regulation 2081/92 but is now governed by Regulation 1151/2012.
PGI status and PDO status

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17
Q

Cases for Indistinctly Applicable MEQRs?

A

Cassis de Dijon
Walter Ray
Com v Italy (Cocoa Products)

Cinetheque
Com v Denmark (Beer Cans)
Schmidberger
PreussenElekta

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18
Q

What happened in Cassis de Dijon?

A

German Law which specified a minimum alcohol level of 25% for fruit liquors
Cassis de Dijon was a blackcurrant fruit liqueur made in France + had alcohol content between 15/20%

France made the arguments of Public Health + Protection of Consumers which were rejected

Principles:
Mutual Recognition
- dual burden

Mandatory Requirements

1) proportionate
2) not arbitrary

Failed

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19
Q

What is Article 36 TFEU

A 
The derogations 
6 Grounds
> public morality
> public policy
> public security
> protection of health and life of humans, animals or plans
> protection of national treasures
> protection of industrial and commercial property

Must be

1) proportionate
2) not a disguised restriction

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20
Q

Public Morality cases

A

Henn and Darby
- porn

Conegate
- love dolls

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21
Q

Public Policy Cases

A

R v Thompson

  • silver coins
    1) equivalent ban on silver coins being melted
    2) fundamental societal interest

Cullett
Rejected

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22
Q

Public Security cases

A

Campus Oil Ltd

  • only oil refinery in Ireland had been acquired by the Irish State.
  • required importers of petroleum products to buy at least 35% of their total requirements from the State-owned oil refinery at prices which the Irish government fixed
  • justified on base of public security
  • survival depends on them

Commission v Greece

  • Greek state exclusive right to import and refine petroleum
  • greek refineries could compete in the market
  • disproportionate measures

Cullett

  • group sold petrol at prices below the minimum price
  • the minimum price was calculated infringed Article 34 as it cancelled out any competitive advantage that imported petrol had
  • gvt said threat to public order and security which would result if local retailers were faced with unrestricted competition
  • rejected - had not proven that it would not be able to deal with these threats
23
Q

Protection of health and life of humans animals or plants

A

Commission v Germany - Beer Purity

  • ban on additives in beer
  • the additives were used in other MSs
  • disproportionate

Criminal Proceedings Against Sandoz BV

  • CoJ was prepared to accept that a ban in the Netherlands on selling foods containing vitamins without authorisation was justified where the excessive consumption of vitamins was harmful
  • but scientific evidence had not been able to determine which sufficient certainty the precise quantities at which they became harmful.

Commission v UK - imports of Poultry Meat

  • Wanted to control Newcastle disease in poultry
  • The real reason was to protect British importers
  • Christmas season

Criminal proceedings against Bluhme

  • prohibition on keeping any bees except the Laeso brown bee justified
  • genuine threat of disappearing

Wider environmental protection
PreussenElektra
- This case was about German legislation requiring electricity distribution undertakings to purchase at fixed minimum prices electricity produced from renewable energy sources in their area of supply in Germany.
- The Court of Justice held that the legislative policy was justified as it was designed to protect the health and life of humans, animals and plants.
- Moreover, Article 6 of the EC Treaty (now Article 11 of the TFEU) required environmental protection to be integrated into the definition and implementation of other Community policies.

24
Q

What are the indistinctly applicable MEQR defences?

A 
Derogations
\+
Mandatory Requirements 
- the effectiveness of fiscal supervision, 
- the protection of public health, 
- the fairness of commercial transactions and 
- the defence of the consumer
Cassis de Dijon
25
Q

Application of Mandatory Requirements

A

Walter Rau Lebensmittelwerke
- Belgian cubic margarine
- made the sale of imported margarine more difficult by requiring producers from other Member States to package their margarine in special packs just to sell it in Belgium
Consumer protection? Necessary to prevent confusion
Legitimate But Disproportionate
Could be protected through labels etc

Commission v Italy - Cocoa Products
- an Italian law that required cocoa and chocolate products containing vegetable fats other than cocoa butter had to be sold as ‘chocolate substitute’.
consumer protection
disproportionate

26
Q

What are Mandatory Requirements?

A

Cassis de Djon

  • protection of Public Health
  • Defence of consumer
  • the effectiveness of fiscal supervision,
  • the fairness of commercial transactions and
MORE:
protection of cultural activities
- Cinéthèque
environmeny
- Commission v Denmark - disposable beer cans
freedom of expression
- Schmidberger
27
Q

What happened in Henn and Darby

A

Attempt to derogate under Article 36 Public Morality by UK

  • porn
  • successful
28
Q

What happened in Connegate

A

Attempt to derogate under Article 36 Public Morality

  • love dolls
  • unsuccessful
29
Q

What happened in R v Thompson

A

Attempt to derogate under Article 36 Public Policy

  • Ban on the exports of silver coins to prevent them being melted
  • Justified as Fundamental interest of the State
  • equivalent ban in the UK
30
Q

What happened in Campus Oil?

A

Attempt to derogate under Article 36 Public Security

  • the only oil refinery in Ireland had been acquired by the Irish State
  • An order was made by the Irish Minister for Industry and Energy requiring importers of petroleum products to buy at least 35% of their total requirements from the State-owned oil refinery at prices which the Irish government fixed on the basis of the costs incurred in the operation of the refinery.
  • The Court of Justice held that this was an MEQR
  • accepted that the restriction was capable of being justified on the grounds of public security
  • petroleum products are of fundamental importance for the existence of the State since its institutions, its essential public services and even the survival of its inhabitants depend on them.
31
Q

What happened in Commission v Greece?

A
  • Greek law gave the Greek Attempt to derogate under Article 36 Public Security

State the exclusive right to import and to refine petroleum products.

  • The Court found that Greece had failed to prove that the public-sector refineries would be unable to dispose of their products on the market at competitive prices without these measures.
  • The measures were unnecessary and, therefore, disproportionate as a result.
32
Q

What happened in Cullett?

A

Attempt to derogate under Article 36 Public Security

  • sold petrol at prices below the minimum price set by French law.
  • The Court of Justice accepted Leclerc’s argument that the way that the minimum price was calculated infringed Article 34 as it cancelled out any competitive advantage that imported petrol would have over petrol refined in France
  • justified on the grounds of public policy and public security by reason of the threat to public order and security which would result if local retailers were faced with unrestricted competition
  • French gvt had not proven that it would not be able to deal with these threats
33
Q

What happened in Commission v Germany - beer Purity

A

Attempt to derogate under Article 36 Protection of human, animals

  • derogation to justify a general ban on additives in beer failed
  • the ban covered additives used in other Member States which had not been proven to pose a threat to public health.
  • The ban was disproportionate as a result as it had not been proven to be necessary.
34
Q

What happened in Criminal Proceedings Against Sandoz BV?

A

Attempt to derogate under Article 36 Protection of human, animals

  • a ban in the Netherlands on selling foods containing vitamins — specifically muesli bars in this case — without authorisation was justified where the excessive consumption of vitamins was harmful
  • but scientific evidence had not been able to determine which sufficient certainty the precise quantities at which they became harmful.
  • left to courts
35
Q

What happened in Commission v UK - Imports of Poultry Meat

A

Attempt to derogate under Article 36 Protection of human, animals

  • Said they wanted to control Newcastle disease in poultry
  • The real reason was to protect British importers
  • Christmas season
  • disguised trade restriction
36
Q

What happened in Criminal proceedings against Bluhme

A

Attempt to derogate under Article 36 Protection of human, animals

  • a prohibition on keeping any bees except the Læsø brown bee on the island of Læsø was held to be justified under the derogation as its purpose was to preserve the Læsø brown bee.
  • This was an indigenous animal population with distinct characteristics which was under genuine threat of disappearing.
  • The ban contributed to the maintenance of biodiversity by ensuring the survival of its population.
37
Q

What happened in PreussenElektra?

A

Attempt to derogate under Article 36 Protection of human, animals
Opened up the derogation to Wider environmental protection

  • German legislation requiring electricity distribution undertakings to purchase electricity produced from renewable energy sources
  • legislative policy was justified as it was designed to protect the health and life of humans, animals and plants.
  • Moreover, Article 6 of the EC Treaty (now Article 11 of the TFEU) required environmental protection to be integrated into the definition and implementation of other Community policies.
38
Q

What happened in Walter Rau Lebensmittelwerke?

A

Belgian argument of Mandatory requirement: consumer protection

Belgian margarine
Had to be cubic packs
More expensive
consumer protection - prevent confusion
consumer protection - legit justification but not proportionate as could just label
39
Q

What happened in Commission v Italy - Cocoa Products

A

argument of Mandatory requirement

  • This concerned an Italian law that required cocoa and chocolate products containing vegetable fats other than cocoa butter had to be sold as ‘chocolate substitute’.
  • MEQR - foreign manufacturers had to use a different sales name on the packaging to their MS - additional packaging costs
    Also the word ‘substitute’
40
Q

What happened in Cinéthèque?

A

mandatory requirement of Protection of cultural activities

  • a French law which banned the sale or hire of videos of films during the first year of their release was held to be capable of being justified as being necessary to encourage the French public to go to the cinema and protect the profitability of cinematographic production.
  • Both domestic and imported
  • Proportionate means of achieving the objective
41
Q

What happened in Commission v Denmark - disposable beer cans?

A

Mandatory requirement protecting the environment

  • laws that required drinks to be produced in standard size containers for recycling were justified on the basis that they proportionally met the objective of protecting the environment
42
Q

What happened in Schmidberger?

A

Mandatory requirement of citizens’ fundamental freedom of expression and assembly

the Austrian government was the first Member State government to use protection of fundamental rights as a justification for restricting a Treaty freedom when it allowed a one-day environmental demonstration to temporarily close the Brenner motorway. This was a major trade route through Austria.

43
Q

Selling Arrangements

A

How you sell it

Criminal Proceedings Against Oosthoek

  • Dutch law prohibited free gifts being offered or provided within a commercial activity
  • may reduce the volume of imports
  • Such legislation may thereby act as an obstacle to the free movement of goods and so may constitute an MEQR.
  • could be justified on the grounds of consumer protection and fair trading

Cinetheque

  • MEQR as hindered the importation of videos from other MSs
  • justified on basis of mandatory requirement

B&Q

  • shops closed on Sunday
  • B&Q’s defence was that the Sunday trading rules was an MEQR prohibited by Article 34. The Court of Justice held that it was an MEQR because, by preventing goods from being sold on a Sunday, it impeded imports from other Member States as less would be sold.
  • justified on socio-economic grounds

Stoke-on-Trent

  • reaffirmed that the Sunday hours were MEQRs
  • proportionate restriction on socioeconomic grounds

Heavily criticised decisions because..
- no dual burden
These were pre-Keck

44
Q

What happened in Keck?

A
  • prosecution of supermarkets for selling goods at a loss
  • said law contravened article 34 - indistinctly applicable MEQR
  • intention to clarify and reexamine its case law about MEQR
    They said…
    selling arrangements would no longer be considered to be MEQRs so long as they fulfilled these two requirements:
    1. They apply to all affected traders operating within the national territory
    2. The affect in the same manner of law and in fact the marketing of domestic and imported products
    – this case DID comply with the two requirements - so not an MEQR

This is the Keck Test

45
Q

Keck Test application:
Fulfilled both
so outside Article 34

A

Criminal Proceedings Against Tankstation

  • closure of all petrol stations
  • applied to all traders
  • outside of Article 34

Punto Casa

  • sunday trading rules
  • under Keck, they did not fall within Article 34 in the first place

Herbert Karner
- advert that goods came from insolvent estate
- contrary to an Austrian ban on announcements
merely prohibited adverts in which a large number of people are targeted and only of the fact that the goods were previously from an insolvent estate. It did not prohibit other adverts relating to the goods and it did not affect imported goods any more than it affected domestic goods.

Keck itself

46
Q

How to distinguish product requirements from selling arrangements

A

Examples of Product Requirements:

Mars
- sales promo - 10% larger than the usual size
- Mars - prohibition on it selling the ice cream was an MEQR
CoJ - a product requirement - the manufacturers would have to change the wrappers and incur additional costs

Familiapress
- Austrian unfair competition act prohibited the sale of newspapers which had competitions giving big money prizes
German magazine sold in Austria - crossword puzzle
- Sad prohibition was a selling arrangement because competitions were merely a method of sales promotion
Coj - a product requirement - the restriction would require the contents of the magazine to be altered
Prohibition was an MEQR
- left to the court

47
Q

What does Nationale Raad say?

A

‘Any legal provision of a Member State prohibiting goods which have not been previously authorised from being marketed, acquired, offered, put on display or sale, kept, prepared, transported, sold, disposed of for valuable consideration or free of charge, imported or used, constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article [34 TFEU].’

48
Q

What does Commisson v Italy (Trailers) say

What case backs it

A

MEQRs are ANY measures that hinder the access of the market of another MS

Prohibition on the use of motorcycles to tow trailers on roads in Italy was a restriction on the free movement of trailers designed for motorcycles.

  • consumers would have no interest in buying them as a result of the prohibition and so it hindered their access to the market.
  • Justified on the ground of the need to ensure road safety.

Backed up by Roos

  • jet ski trailers
  • limited use
  • so consumers will not want to buy them
  • justified on environmental (MR + 36)

Raad

49
Q

Application of Keck Test:
Failed 2 Requirements
Was Article 34

A

Libro

  • minimum prices for imported German language books
  • part of the law only applied to imports - so was an MEQR
  • failed the Keck test
  • tried to rely on article 36 - national treasures - failed
  • tried to rely on MR - cultural objects - failed
Advertising:
Agostini
Swedish ban on TV advertising 
- satisfied the 1st requirement of Keck
- 2nd may not have been satisfied - did NOT affect all readers in the same manner
Left it to the national courts

Gourmet International Products

  • banning of alcoholic drinks on radio
  • impeded access by foreign producers more
  • MEQR
50
Q

Article 35 - quantitative restrictions

A

R v Thompson
- silver coins

Hedley Lomas
- refusal to export licenses

51
Q

Article 35 - distinctly applicable

A

Les Sieurs

52
Q

Article 35 - indistinctly applicable

A

Very reluctant to say so

Vee en Vlees
Gysbrechts

53
Q

What did Criminal Proceedings against Gilli + Andres
AND
Irish Souvenirs say

A

Mandatory Requirements only justify indistinctly applicable MEQRs

EU Law (9 decks)

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