EU Law - FMG Derogations Flashcards
Protection of working environment MR
Oebel
Omega Spielhallen judgment
MR on human dignity - allowed to pursue MR underpinned by a societal interest unique to the Member
what is the suitability test of proportionality?
Rational relationship between measure and objective
Denkavit
Second set of checks on imports may be lawful is necessary and proportionate
Campus Oil v Minister for Industry and Energy judgment
Would not have been accepted if Community rules had provided necessary protection for oil suppliers
Weatherill and Beaumont on Cassis
The Cassis MR test favours a deregulated free market economy as opposed to protecting national rules
Commission v Germany 1987
Beer purity laws
What case showed it is legitimate to say an outright ban on a demo was too restrictive on FMG?
Schmidberger v Republic of Austria
Who rejected the argument in Cullet v Centre Leclerc on the facts?
ECJ
When are dual checks unlawful and according to what case?
If unnecessarily imposed as technical tests already done in state of origin: Biologische Producten
Commission v Austria [2005] general
Heavy lorries, banned from road
Why is cost-benefit balancing more intrusive?
Compares extent of restriction and consequent furtherance of a societal objective
Commission v Germany on proportionality general
Hospital supplies
Commission v Belgium 1992 judgment
Allow environmental protection as a justification, BUT found not to be discriminatory because of special nature of subject matter, so technically MR
What was the effect of Cassis on regulatory competence of members?
Took such regulatory competence and transferred it to the EU through Article 114 EU
Who does the burden of proof lie with under Article 36?
Member
Commssion v UK 1983 judgment
scepticism over the legality of second checks for Article 36
What two cases show Article 36 on public morality?
Henn and Derby; Conegate v Commissioners of Customs and Excise
Commission v Austria [2005] judgment
Debatable if indistinctly applicable or indirectly discriminatory, but assumed IDA so again no clear exemption
Commission v Netherlands [2004] judgment
Mere hypothetical risk founded on conjecture not allowed for protective measures
Why did they argue it was ‘vital’ for 35% of petrol imported to be bought from Ireland?
To maintain Irish oil-refining capacity
What case shows labelling requirements can be found to breach Article 34?
Fietje
What case shows Article 36 on public policy?
Cullet v Centre Leclerc
Why is the balancing exercise between market integration and attainment of societal goals for MRs a problem?
Can be hard to deal with complex empirical and normative issues, and to pick which outweighs the other
Essent v Belgium general
AGBot called for MR extension to DA rules
what do Craig and De Burca argue in regard to Article 36?
Broader interpretation of Article 36 categories, e.g. consumer protection and environment under number 3
Name at least two cases on protection of health and life under Article 36
Commission v UK (Newcastle); Officer van Justitie v Sandoz; Dankavit; Commission v UK (UHT); Biologische Production
What features do Article 36 and MRs share?
Substantive overlap (public health), proportionality, precautionary principles and value diversity between Members
Foie Gras case on MRs
Obligation to insert MR clauses in legislation itself when imposing PRs, unless Article 36 justification
What are the two derogations of Article 34?
Article 36 and mandatory requirements
Who rejected the argument in Cullet v Centre Leclerc on principle?
AG Verloren
On what basis the ECJ reject the argument in Cullet v Centre Leclerc?
On facts - not shown it would have consequences for law and order
Schmidberger v Republic of Austria general
Route blocked by demo, authorised.
Commission v Netherlands [2004] general
Vitamins, excess
Familiapress on MR
Maintenance of plurality of the press MR
Name at least three problems with Cassis MR strategy?
MR is not always effective, dependent upon agreement of outcome of adjudicative process, balancing exercise between market integration and societal goals can be difficult, balance between market integration and protection function by national rules can be affected and allocation of regulatory competence between EU and Members
What shows that MRs are not always effective?
Commission’s Paper on MR called for increased monitoring of MR
Regulation (EC) No.764/2008
Justifications under Article 36 are also subject to the conditions set out therein
Maintenance of plurality of the press MR
Familiapress
L&O on Commission v Germany [1987]
Questioned if labelling really achieved the same level of protection
Who questioned if labelling in Commission v Germany really achieved the same level of protection?
L&O
what case suggested second checks may be allowed under protection of health and life article 36?
Denkavit
Henn & Derby on diversity
Each Member determines its own ‘scale of values’ and ‘requirements of public morality’
Criminal Proceedings against Van der Laan
EU harmonisation can make it impossible to rely on an MR depending on minimum/total harmonisation
Commission v Austria [2011] judgment
Need proof Member had examined less trade restrictive alternatives and discounted them only if unable to achieve desired level of protection
What does Weatherill argue about disagreement between when MRs should have saved the relevant national law?
ECJ have given relatively little attention to prospects of consumer confusion, usually catching food standards within Article 34
What do MRs ensure?
Members can defend dual regulatory burden if justification outweighs pursuit of a common, single, internal market
Each Member determines its own ‘scale of values’ and ‘requirements of public morality’
Henn & Derby
On what basis did AG Verloren reject the argument in Cullet v Centre Leclerc?
On principle - would allow private interest groups to determine the scope of freedoms
Schmidberger v Republic of Austria judgment
Broad margin of discretion - satisfied because no alternative to satisfy same level of protection, and legitimate to say outright ban on demo was too restrictive on FMG
What are the four applications of proportionality?
Suitability, least trade restrictive means, cost-benefit balancing and proceduralisation
In what area is there overlap between MRs and Article 36?
Public health
Officer van Justitie v Sandoz judgment
Special attention to factual basis for protection of health and life under Article 36, but where there is uncertainty Member can decide on protection degree
Fiejte general
Certain name on label
How did KO v De Agostini attempt to resolve the confusion introduced by Keck in regard to substantive overlap?
Measure under Article 34 can be justified by EITHER Article 36 or an MR
What Article of what Treaty enshrines the precautionary principles?
Article 191 TFEU
Commission v Germany on proportionality judgment
Member has power to decide degree of protection afforded and the manner in which they achieve that level
Was the list in Cassis of MR exhaustive?
No
What case showed that where in-depth analysis is impossible, the precautionary principle allows protective measures to be adopted?
Commission v Netherlands [2004]
Aher-Waggon on availability of justifications
IDA and DA distinction can be hard so ECJ may characterise as within Cassis to allow MR justification
Purely economic objective might count in so far as it contributes to attainment of high-level of protection
Commission v Germany Hospital
What cases suggests ECJ may characterise a measure as IDA to allow MR justification when DA/IDA distinction is too hard?
Aher-Waggon
what year was the danish beer bottles case?
1988
What is the ‘rule of reason’ and according to who?
A general principle of interpretation according to AG VerLoren
Name the four derogations under Article 36
Public morality/policy/security; protection of health/life of humans/animals/plants; protection of national treasures possessing artistic/historic value and; protection of industrial and commercial property
what was the effect of Cassis on the Commission?
Caused them to reorient their legislative programme
Name at least two cases showing acceptance of MR justifications?
Oebel; Cinetheque; Familiapress
Measure under Article 34 can be justified by EITHER Article 36 or an MR
KO v De Agostini
what case showed EU harmonisation can make it impossible to rely on an MR depending on minimum/total harmonisation?
Criminal Proceedings against Van der Laan
What four MRs did they point to in Cassis?
Effectiveness of fiscal supervision, protection of public health, fairness of commercial transactions and defence of the consumer
Cinema as a form of cultural expression MR
Cinetheque
Where was the list of MR set down?
Cassis de Dijon
KO v De Agostini on Article 36 and harmonisation
Community Directives only partially harmonised relevant law, so national rules applied
Commission v Denmark judgment on proportionality
Additional measure was not least trade restrictive and could not justify high degree of FMG restriction
Biologische Producten general
Dual checks
What case showed a Member can pursue an MR underpinned by a societal interest unique to them?
Omega Spielhallen
Heavy lorries, air quality
Commission v Austria [2011]
Fietje judgment
Shows even labelling requirements can be found to breach Article 34, if label required to be changed contains same info as required by state import, and just as understandable
What year was the heavy lorries, air quality case?
2011
What approach does the ECJ take to Article 36?
Narrow approach - public morality hardly ever relied upon
What are the two overarching difference between the two derogations?
Substantive and their availability
what articles are relevant for public security and Article 36?
Article 346 - 348 TFEU
Commission v Germany [1998] general
Uncastrated male pigs
Omega Spielhallen general
Laser drone game prohibited
In what two ways did the Commission reorient their legislative programme after Cassis?
Tackle inadmissible trade rules through Article 258 TFEU and harmonisation directed towards rules still admissible under Cassis
Campus Oil v Minister for Industry and Energy
35% requirements by petrol importers need to be bought from state - ‘vital’
What does Article 36 not allow under it?
Arbitrary discrimination or disguised restriction
How did the CJEU reject AG Bot implicitly in Essent v Belgium?
Called the measure an MEE (not DA or IDA) and allowed environmental protection
Article 191 TFEU
Applies to environmental protection but also national security and public health - protective measures even with scientific uncertainty
Name two cases on least trade restrictive means proportionality test
Commission v Denmark; Commission v Germany
Commission v Denmark general on proportionality
Danish beer bottles case - above a certain volume threshold
Conegate v Commissioners of Customs and Excise JUDGMENT
For the Member to decide upon the nature of public morality, but the lack of a ban on domestic products removed Article 36 defence
Preussen Elektra
AG Jacobs questioned if Article 36 really is exhaustive, arguing for relaxation between Article 36 and MR
Why is Commission v Belgium 1992 technically not an exception to the fact that Article 36 is limited to that set down therein?
They found the measure not to be discriminatory because of special nature of subject matter
Moorman on harmonisation and Article 36
Harmonisation for poultry health inspections were total so no justifications under Article 36
What could it be better to call MRs?
‘Imperative public policy requirements’
Essent v Belgium general
Electricity from renewable sources within Belgium
Commission v UK 1984 general
Newcastle disease
Why are MRs broader than Article 36?
Article 36 involves discriminatory measures striking at the heart of the EU
What case gave an obligation to insert MR clauses in legislation itself when imposing PRs, unless Article 36 justification?
Foie Gras
Moorman general
Poultry health inspections
Commission v Germany [1987]
Less restrictive measure could have been adopted through the label
What is broader, MRs or Article 36?
MRs
What year was the Commission v Netherlands case on excess vitamins?
2004
Cinetheque on MR
Cinema as a form of cultural expression MR
Omega Spielhallen was a what kind of case?
FMS
What principle do MRs extend and from which case?
‘Rule of reason’ from Dassonville
Commission v Germany [1998] judgment
Harmonising measure prevented G from applying a different measures
What are justifications under article 36 also subject to?
Conditions in Regulation (EC) No.764/2008
What other grounds are there for validating discriminatory measures under Article 36, MAYBE, and according to what case?
Environment: Commission v Belgium 1992
What case shows a broad margin of discretion when considering least trade restrictive means?
Schmidberger v Republic of Austria
How did Keck confuse substantive overlap between Article 36 and MR?
Justifications for discriminatory SAs under Article 34 may only fall under an MR
Commission v Germany [1987] on cost-benefit balancing
‘Proportionate to the aim in view’
What AG and in what case argued for relaxation between Articld 36 and MR?
AG Jacobs in Preussen Elektra
Commission v Germany [1987] on least trade restrictive means
Not least trade restrictive as could have required list of ingredients
Cullet v Centre Leclerc general
Minimum fuel retail price fixed on French refinery prices
what case gives an example of where total harmonisation prohibited Article 36 justification?
Moorman OR Commission v Germany [1998]
Commission v UK 1983 general
UHT milk, second checks
Commission v Germany Hospital on cost-benefit balancing
Purely economic objective might count in so far as it contributes to attainment of high-level of protection
what year was the beer purity case
1987
Henn and Derby on Article 36 general
UK ban on importation of pornography, but allowed possession
Conegate v Commissioners of Customs and Excise general
Life-sized dolls
Culler v Centre Leclerc judgment
Rejected argument that there would be civil disturbances without fixing fuel price
articles 346 - 348 TFEU
Ability to take certain national security measures
What do Craig and De Burca note about the wording of Article 36?
Might preclude the removal of IDA/DA distinction
What happens in the case of Public Health as a justification?
Needs to satisfy both Article 36 and MR, especially when unclear if rule is discriminatory or IDA
Commission v Austria [2011] general
Heavy lorries, air quality
Officer van Justitie v Sandoz general
Muesli bars, vitamins
What case shows Article 36 on public security?
Campus Oil v Minister for Industry and Energy
Biologische Producten judgment
Dual checks unlawful if unnecessarily imposed as technical tests already done in state of origin
What case showed that for proceduralisation test of proportionality, the court consider if Member has examined less trade restrictive alternatives with PROOF?
Commission v Austria [2011]
Commission v Belgium 1992 general
Locally produced waste
What case suggests MRs may be expanded to DA rules?
Essent v Belgium
Through what Article of what Treaty was regulatory competence transferred to the EU as a result of Cassis?
Article 114 TFEU
What is the ‘exception’ to the traditional rule that only discriminatory measures can be justified under Article 36?
Sometimes environmental protection, but no clear exceptions
Beer purity laws
Commission v Germany [1987]
What Articles allow Members to take certain national security measures?
Article 346 - 348 TFEU
What did the court require in Commission v Netherlands [2004]?
Detailed, in-depth studies on assessment of risk
Oebel
Protection of working environment MR
When does a justification need to satisfy both Article 36 and MR?
When it is based on public health
Commission v UK 1984 judgment
Disguised trade restriction
Member has power to decide degree of protection afforded and the manner in which they achieve that level
Commission v Germany: Hospital
What Advocate General and in what case advocated extension of MR to DA rules?
AG Bot in Essent v Belgium
what case showed scepticism over legality of second checks for Article 36?
Commission v UK 1983
Name at least one case on consumer protection as an MR
Commission v Germany 1987; Fietje
what is the traditional rule on justifying non-discriminatory measures?
can only be done under MR
How did Barnard describe proceduralisation of proportionality
‘good governance approach to proportionality’
Why is it an issue that MRs are dependent upon agreement of outcome of adjudicative process?
Requires a national law to be removed when it is believed an MR should have saved it
