Defences to Article 34 and 35

Question 1

Henn and Derby

Answer 1

ECJ: ban of adult material into UK can be in terms of public morality

Question 2

Conegate

Answer 2

ECJ: Ban of Dolls into the UK was held not to be justifiable lawfully already manufactured in the UK – in this case therefore its is arbitrary discrimination

Question 3

R v Thomson

Answer 3

Concerned a ban of exporting silver coins

ECJ: protected the right of the state to make coins – so acceptable

Question 4

Cullett v Centre Leclerc

Answer 4

Facts: an attempt by the French government to set a floor price on the sale of petroleum. Their argument being local retailers faced with unrestricted competition will react in a way which poses a serious threat to public security.

ECJ disagreed - government failed to prove that they won’t be able to deal with it - therefore not proportional measures

Question 5

Campus Oil

Answer 5

Irish ministers required importers of petroleum to purchase from a certain % of their products for the Irish state refinery.

Held: that this was a MEQR, but can be justified on the grounds of public security – because such measures are necessary to ensure the continuing operation of the Irish refinery (which is highly central to the survival of the Irish public - cannot solely rely on imports)

Question 6

Commission v Germany (Beer purity)

Answer 6

Principle - court will look at scientific evidence
Facts: ECJ’s rejected germany’s justification for a ban of adverts on beer with additives because it had not been proved that it does not pose a threat to the public health

Question 7

Sandoz

Answer 7

Principle - if no scientific evidence available, then ECJ will allow the MS to decide the degree of health protection required

Facts: Dutch authorities refused to grant authorisation for the import of muesli bars with added vitamins

Question 8

Commission v UK (Poultry Meat)

Answer 8

Principle - An arbitrary measure or disguised trade barrier will not be tolerated

UK government: ban to control diseases
ECJ rejected: the real reason of the band was to protect domestic industries (disguise restriction on trade)

Question 9

Bluhme

Answer 9

Showed that article 36 also permits derogations of protecting the life and health of animal and plants

Facts: A prohibition on keeping bees in a certain area was held to be justified under the derogation as the purpose was to preserve population

Question 10

PressureElektra AG v Schleswag AG

Answer 10

A German legislation requires electricity distribution undertakings to purchase at fixed minimum prices electricity produced from renewable sources.

Held – legislative policy was justified as it was designed to protect the health and life of humans, animals and plants.

ECJ ignored that the mandatory requirement of environmental protection should be capable of being invoked for distinctly applicable measures

Question 11

Gili and Andres

Answer 11

Mandatory requirements are only available for indistinctly applicable MEQRs

Question 12

Cinetheque

Answer 12

A French law which banned the sale or hire of videos of film during the first year of their release was held to be capable of being justified (as a mandatory requirement) as being necessary to encourage the French public to go to the cinema and protect the profitability of cinematographic production

Question 13

Commission v Denmark (Disposable Beer Cans)

Answer 13

Laws that require drinks to be produced in standard size fore recycling were justified on the basis that they proportionally met the objective of protecting the environment

Question 14

Schmidberger

Answer 14

Protection of fundamental rights (freedom of expression and assembly) as a justification for restricting a treaty freedom

Facts: Austrian government was the first member state government to use protection of fundamental rights (the citizen’s fundamental freedom of express and assembly) as a justification for restricting a Treaty freedom when it allowed one day environmental demonstration to temporarily close a motor way

Question 15

Walter Rau

Answer 15

Proportionality Test

Belgium law Disproportionate – e.g. margarine (getting foreign exporters to repackage their goods) – more proportional measure would be asking them to make it clear on the packaging that it is margarine and not butter

a case which tried to justify indistinctively MEQRs on the grounds of consumer protection

Question 16

Cocoa Products

Answer 16

Court emphasised that article 34 (concerned restrictions on imports and not on domestic goods being out competed – instead this is known as reverse discrimination

a case which tried to justify indistinctively MEQRs on the grounds of consumer protection

Question 17

Oosthoek

Answer 17

Ban on free gifts within a commercial activity was an MEQR – reduce volume of imports because free gifts is a form of marketing

However, court concluded that the ban on this case can be justified on the grounds of consumer protection and fair trading because offering free gifts as a means of sales promotion may mislead consumers as to the real prices of the products and distort the conditions on which genuine competition is based

Question 18

Tofaen BC v B&Q; Stoke-on-trent v B&Q

Answer 18

Ban of Sunday trading was held as an MEQR – reduced goods being sold on the premises (less goods will be imported)

However, court held it could be justified on the socio-cultural grounds, as Sunday was traditionally trated as being special, but left it to the national courts to decide whether the restriction on trade was necessary and proportionate

Question 19

Keck & Mithouad

Answer 19

Keck Test
Selling arrangement won’t be MEQRs if:
1) It applies to all traders within national territory
2) it affect imported and domestic products in the same in law and in fact

Question 20

Punto Casa

Answer 20

Sunday opening (in contrast with earlier B&Q cases) will no longer be considered as MEQRs

Question 21

LIBRO

Answer 21

Austrian Law required both publisher and importers of books to set retail price for all books in the German language and to publish that price

ECJ: didn’t satisfy importers were not allowed to set a price below a floor whilst - Publishers in Austria are not subjected to these restrictions – therefore it doesn’t satisfy the KECK test because it doesn’t apply to all traders within national territory

Question 22

De Agostini

Answer 22

Main Principle: If a rule is about selling, it will be within Article 34 if it satisfies the Keck test (De Agostini; Gourmet Internationale

Outright ban in Sweden of television ad

Held that the ban did not affect all traders in the same manner in law and facet – this is because the ban on advertising may have a greater impact on products from other MS than domestic products as De Agostini maintained that television promotion was the only effective manner of reaching its target consumers to penetrate the Swedish market.

Question 23

Gourmet International

Answer 23

Main Principle: If a rule is about selling, it will be within Article 34 if it satisfies the Keck test (De Agostini; Gourmet Internationale

Ban on advertisement impeded foreign importer to Swedish market than domestic goods and was a MEQR – because domestic goods will better exposed than foreign goods

Question 24

Herbert Karnar

Answer 24

ECJ: Prohibition on advertisement that goods at an auction originated from an insolvent state when they no longer form part of that the insolvent state was lawful – fell outside article 34

Question 25

Mars

Answer 25

Principle: If requirements which have to be met by the products themselves will fall into article 34 even if they relate to sales promotions which appear on in the product itself

Sales promotion - on the packages of the Mars bars they said 10% extra free (they sold it at a higher price). German consumer association complained because misleading – gave the impression that the extra 10% was free (in fact it was sold at a higher price – wanted to prohibit the sales). Mars argued that any restriction on sales would be a MEQR.

Held: restriction was not a selling arrangement but was a product requirement as it related to the wrappers which were part of the product

Question 26

Famaliapress

Answer 26

Principle: If requirements which have to be met by the products themselves will fall into article 34 even if they relate to sales promotions which appear on in the product itself

Austrian authorities prohibited the sale of newspapers and magazines which contained competitions giving big money prizes. Readers who successfully completed the uzzle in the paper were entered to a prize draw. The Austrian authorities argued that that the competition was a selling arrangement (therefore can be lawfully restricted if it doesn’t satisfy the Keck test) because competitions were merely a method of sales promotion.

Held: ECJ said they were a product requirement – the prohibition was therefore a MEQR. However it accepted that the protection of the diversity of the press was a mandatory requirement which could justify the restriction