EU - Free Movement of Goods

Question 0

Art. 3(3) TEU

Answer 0

The aim of the Union is the establishment of an internal market

Question 1

Art. 26(2) TFEU

Answer 1

Internal market comprises an area in which there is freedom of movement for:

• goods
• services
• people
• capital

Question 2

Barriers to achieving the internal market

Answer 2

• customs duties (Arts. 28-32 TFEU)
• quantitative restrictions on imports/exports (Arts. 34-36 TFEU)
• taxation differences (Art. 110 TFEU)

Question 3

Staatsecretaris van Financiën v B. F. Joustra

Answer 3

VAT is a Community issue, but excise duties on fuel, cigarettes, alcohol, etc. remain under MS control

Question 4

Art. 34 TFEU

Answer 4

QRs on imports and measures having equivalent effect (MEQRs) are prohibited between MS

Question 5

Commission v Italy (Art Treasures)

Answer 5

Goods are anything that are capable of valuation and forming the subject of a commercial transaction

Question 6

SIOT

Answer 6

Imports include goods in transit through one MS to another

Question 7

Commission v Ireland (Buy Irish Campaign)

Answer 7

Promotional campaigns to encourage domestic consumption may amount to MEQR, particularly if they are state-financed

Question 8

Commission v France (Transport Strikes)

Answer 8

MS is under a positive duty to ensure FMoG, i.e. must actively remove obstacles

Question 9

Geddo

Answer 9

QRs are measures amounting to a total/partial restraint on imports, exports or goods in transit

Question 10

Distinctly Applicable Measures

Answer 10

DAMs apply to imports only, and hinder importation/make it more difficult

Question 11

Rewe- Zentralfinanz

Answer 11

1. Import inspections on apples to check for San Jose’s Scale are DAMs
2. Risk to health must be a genuine one supported by evidence, and measure necessary to control spread of infection

Question 12

Commission v UK (Poultry)

Answer 12

Import licences for turkeys are DAMs

Question 13

Procurer du Roi v Dassonville

Answer 13

1. Certificates of origin for whisky are DAMs
2. All trading rules enacted by MS that are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are MEQRs

Question 14

Art. 36 TFEU

Answer 14

Certain derogations may be used to justify MEQRs on the following grounds (exhaustive list):

• public morality
• public policy
• public security
• protection of health and life of humans, animals or plants
• protection of national treasures
• protection of intellectual property rights

Question 15

Schwarz

Answer 15

Justified derogations may only be relied upon to the extent they are necessary and proportionate to achieve the desired result

Question 16

R v Henn and Darby

Answer 16

Ban on importation of pornography to UK on the grounds of public morality was proportionate, as there was no UK pornography industry at the time

Question 17

Conegate v Customs and Excise

Answer 17

Ban on import of products was not justified because products were not banned in the UK

Question 18

Schmidberger

Answer 18

Restrictions on. Imports are justifiable for reasons of public policy if there is a genuine and sufficiently serious threat to a fundamental interest of society, e.g. freedom of speech

Question 19

Deutscher Apothekerverband v 0800 Doc Morris

Answer 19

1. Ban on imports for public health reasons are justified, and the MS has discretion in deciding what level of protection is required - explains discrepancies between MS
2. Ban on mail order pharmaceutical products will not be equal in fact, as it discriminates against imports to a greater extent (cannot enter market at all; domestic retailers rare still able to sell their products, just not via mail order)

Question 20

Commission v UK (UHT Milk)

Answer 20

Restrictions will not be justified where measures taken in country of export are sufficient

Question 21

Commission v Germany (Beer Purity)

Answer 21

1. Generalised risks to health, e.g. fear of additives, will not be sufficient grounds to justify a derogation
2. Consumer protection is a justifiable mandatory requirement for IAMs

Question 22

Campus Oil v Ireland’s Minister for Industry and Energy

Answer 22

DAM may be justified for public security reasons, e.g. to preserve refinery expertise

Question 23

Hedley Lomas

Answer 23

Derogations under Art. 36 TFEU may NOT be used where a harmonising directive is already in place

Question 24

Indistinctly Applicable Measures

Answer 24

Measures that apply equally to imports and domestic goods

Question 25

Cassis de Dijon

Answer 25

Sets out two rules that are used to determine if an IAM is justifiable:

• rule of reason (differences between MS in relation to IAM regulations will be permitted if there are mandatory requirements on products within the MS for environmental protection, public health, etc.)
• mutual recognition (measure will only be allowed if the product is also banned/restricted in exporting MS)

Question 26

Commission v Denmark (Beer Cans)

Answer 26

IAM restricting the sale of beer in disposable cans was justifiable on the grounds of environmental protection, even though there was no such restriction in the country of export

Question 27

Criminal Proceedings against Prantl

Answer 27

IAM restrictions on import of wine in Bocksbeutelflaschen from Italy was not justified as the wine could lawfully be sold in Italy

Question 28

Keck v Mithouard

Answer 28

1. Companies were using Cassis rules to overcome different domestic selling arrangements, e.g. Sunday trading in UK (Stoke-on-Trent CC v B&Q Plc)
2. Where IAMs failed to satisfy rule of reason in Cassis, they would constitute selling arrangements and be exempt from Art. 34 TFEU, provided:
   - they apply equally to imports and domestic goods
   - they apply to all traders

Question 29

Walter Rau Lebensmittelwerke

Answer 29

IAMs are justifiable if they are proportionate; restriction on sale of margarine in square tubs to protect consumers fro confusion was too severe, as it could have been achieved by less costly means, e.g. labelling

Question 30

Capena

Answer 30

Shop opening hours are presumed to be selling arrangements

Question 31

Commission v Greece (Baby Food)

Answer 31

IAM restrictions on place of sale are presumed to be selling arrangements

Question 32

Hünermund

Answer 32

IAM restrictions on location of advertising are presumed to be selling arrangements

Question 33

Swedish Consumer Ombudsman v de Agostini

Answer 33

IAM restrictions onn selling arrangements must operate equally in law (all traders/imports and domestic products) AND in fact

Question 34

Swedish Consumer Ombudsmen v Gourmet International Products

Answer 34

A ban on advertising will discriminate to a greater degree against importers, as it will be difficult for foreign companies to raise awareness of their products (N.B. It does not matter that domestic producers may/may not be affected as well)

Question 35

Mars

Answer 35

Labelling on packaging does not constitute a selling arrangement, i.e. restrictions on packaging are MEQRs

Question 36

Estée Lauder/Clinique

Answer 36

The name of the product is an inherent characteristic, and restrictions on names are MEQRs

Question 37

Art. 35 TFEU

Answer 37

1. QRs and MEQRs on exports are prohibited

2. Principles operate in the same way as Art. 34 TFEU, although there are no IAMs

Question 38

Groenveld

Answer 38

There are no IAMs in relation to exports