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Law Second Year > EU Law - FMG Derogations > Flashcards

EU Law - FMG Derogations Flashcards

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1
Q

Protection of working environment MR

A

Oebel

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2
Q

Omega Spielhallen judgment

A

MR on human dignity - allowed to pursue MR underpinned by a societal interest unique to the Member

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3
Q

what is the suitability test of proportionality?

A

Rational relationship between measure and objective

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4
Q

Denkavit

A

Second set of checks on imports may be lawful is necessary and proportionate

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5
Q

Campus Oil v Minister for Industry and Energy judgment

A

Would not have been accepted if Community rules had provided necessary protection for oil suppliers

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6
Q

Weatherill and Beaumont on Cassis

A

The Cassis MR test favours a deregulated free market economy as opposed to protecting national rules

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7
Q

Commission v Germany 1987

A

Beer purity laws

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8
Q

What case showed it is legitimate to say an outright ban on a demo was too restrictive on FMG?

A

Schmidberger v Republic of Austria

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9
Q

Who rejected the argument in Cullet v Centre Leclerc on the facts?

A

ECJ

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10
Q

When are dual checks unlawful and according to what case?

A

If unnecessarily imposed as technical tests already done in state of origin: Biologische Producten

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11
Q

Commission v Austria [2005] general

A

Heavy lorries, banned from road

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12
Q

Why is cost-benefit balancing more intrusive?

A

Compares extent of restriction and consequent furtherance of a societal objective

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13
Q

Commission v Germany on proportionality general

A

Hospital supplies

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14
Q

Commission v Belgium 1992 judgment

A

Allow environmental protection as a justification, BUT found not to be discriminatory because of special nature of subject matter, so technically MR

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15
Q

What was the effect of Cassis on regulatory competence of members?

A

Took such regulatory competence and transferred it to the EU through Article 114 EU

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16
Q

Who does the burden of proof lie with under Article 36?

A

Member

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17
Q

Commssion v UK 1983 judgment

A

scepticism over the legality of second checks for Article 36

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18
Q

What two cases show Article 36 on public morality?

A

Henn and Derby; Conegate v Commissioners of Customs and Excise

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19
Q

Commission v Austria [2005] judgment

A

Debatable if indistinctly applicable or indirectly discriminatory, but assumed IDA so again no clear exemption

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20
Q

Commission v Netherlands [2004] judgment

A

Mere hypothetical risk founded on conjecture not allowed for protective measures

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21
Q

Why did they argue it was ‘vital’ for 35% of petrol imported to be bought from Ireland?

A

To maintain Irish oil-refining capacity

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22
Q

What case shows labelling requirements can be found to breach Article 34?

A

Fietje

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23
Q

What case shows Article 36 on public policy?

A

Cullet v Centre Leclerc

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24
Q

Why is the balancing exercise between market integration and attainment of societal goals for MRs a problem?

A

Can be hard to deal with complex empirical and normative issues, and to pick which outweighs the other

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25
Q

Essent v Belgium general

A

AGBot called for MR extension to DA rules

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26
Q

what do Craig and De Burca argue in regard to Article 36?

A

Broader interpretation of Article 36 categories, e.g. consumer protection and environment under number 3

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27
Q

Name at least two cases on protection of health and life under Article 36

A

Commission v UK (Newcastle); Officer van Justitie v Sandoz; Dankavit; Commission v UK (UHT); Biologische Production

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28
Q

What features do Article 36 and MRs share?

A

Substantive overlap (public health), proportionality, precautionary principles and value diversity between Members

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29
Q

Foie Gras case on MRs

A

Obligation to insert MR clauses in legislation itself when imposing PRs, unless Article 36 justification

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30
Q

What are the two derogations of Article 34?

A

Article 36 and mandatory requirements

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31
Q

Who rejected the argument in Cullet v Centre Leclerc on principle?

A

AG Verloren

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32
Q

On what basis the ECJ reject the argument in Cullet v Centre Leclerc?

A

On facts - not shown it would have consequences for law and order

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33
Q

Schmidberger v Republic of Austria general

A

Route blocked by demo, authorised.

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34
Q

Commission v Netherlands [2004] general

A

Vitamins, excess

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35
Q

Familiapress on MR

A

Maintenance of plurality of the press MR

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36
Q

Name at least three problems with Cassis MR strategy?

A

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

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37
Q

What shows that MRs are not always effective?

A

Commission’s Paper on MR called for increased monitoring of MR

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38
Q

Regulation (EC) No.764/2008

A

Justifications under Article 36 are also subject to the conditions set out therein

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39
Q

Maintenance of plurality of the press MR

A

Familiapress

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40
Q

L&O on Commission v Germany [1987]

A

Questioned if labelling really achieved the same level of protection

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41
Q

Who questioned if labelling in Commission v Germany really achieved the same level of protection?

A

L&O

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42
Q

what case suggested second checks may be allowed under protection of health and life article 36?

A

Denkavit

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43
Q

Henn & Derby on diversity

A

Each Member determines its own ‘scale of values’ and ‘requirements of public morality’

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44
Q

Criminal Proceedings against Van der Laan

A

EU harmonisation can make it impossible to rely on an MR depending on minimum/total harmonisation

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45
Q

Commission v Austria [2011] judgment

A

Need proof Member had examined less trade restrictive alternatives and discounted them only if unable to achieve desired level of protection

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46
Q

What does Weatherill argue about disagreement between when MRs should have saved the relevant national law?

A

ECJ have given relatively little attention to prospects of consumer confusion, usually catching food standards within Article 34

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47
Q

What do MRs ensure?

A

Members can defend dual regulatory burden if justification outweighs pursuit of a common, single, internal market

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48
Q

Each Member determines its own ‘scale of values’ and ‘requirements of public morality’

A

Henn & Derby

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49
Q

On what basis did AG Verloren reject the argument in Cullet v Centre Leclerc?

A

On principle - would allow private interest groups to determine the scope of freedoms

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50
Q

Schmidberger v Republic of Austria judgment

A

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

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51
Q

What are the four applications of proportionality?

A

Suitability, least trade restrictive means, cost-benefit balancing and proceduralisation

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52
Q

In what area is there overlap between MRs and Article 36?

A

Public health

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53
Q

Officer van Justitie v Sandoz judgment

A

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

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54
Q

Fiejte general

A

Certain name on label

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55
Q

How did KO v De Agostini attempt to resolve the confusion introduced by Keck in regard to substantive overlap?

A

Measure under Article 34 can be justified by EITHER Article 36 or an MR

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56
Q

What Article of what Treaty enshrines the precautionary principles?

A

Article 191 TFEU

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57
Q

Commission v Germany on proportionality judgment

A

Member has power to decide degree of protection afforded and the manner in which they achieve that level

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58
Q

Was the list in Cassis of MR exhaustive?

A

No

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59
Q

What case showed that where in-depth analysis is impossible, the precautionary principle allows protective measures to be adopted?

A

Commission v Netherlands [2004]

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60
Q

Aher-Waggon on availability of justifications

A

IDA and DA distinction can be hard so ECJ may characterise as within Cassis to allow MR justification

61
Q

Purely economic objective might count in so far as it contributes to attainment of high-level of protection

A

Commission v Germany Hospital

62
Q

What cases suggests ECJ may characterise a measure as IDA to allow MR justification when DA/IDA distinction is too hard?

A

Aher-Waggon

63
Q

what year was the danish beer bottles case?

A

1988

64
Q

What is the ‘rule of reason’ and according to who?

A

A general principle of interpretation according to AG VerLoren

65
Q

Name the four derogations under Article 36

A

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

66
Q

what was the effect of Cassis on the Commission?

A

Caused them to reorient their legislative programme

67
Q

Name at least two cases showing acceptance of MR justifications?

A

Oebel; Cinetheque; Familiapress

68
Q

Measure under Article 34 can be justified by EITHER Article 36 or an MR

A

KO v De Agostini

69
Q

what case showed EU harmonisation can make it impossible to rely on an MR depending on minimum/total harmonisation?

A

Criminal Proceedings against Van der Laan

70
Q

What four MRs did they point to in Cassis?

A

Effectiveness of fiscal supervision, protection of public health, fairness of commercial transactions and defence of the consumer

71
Q

Cinema as a form of cultural expression MR

A

Cinetheque

72
Q

Where was the list of MR set down?

A

Cassis de Dijon

73
Q

KO v De Agostini on Article 36 and harmonisation

A

Community Directives only partially harmonised relevant law, so national rules applied

74
Q

Commission v Denmark judgment on proportionality

A

Additional measure was not least trade restrictive and could not justify high degree of FMG restriction

75
Q

Biologische Producten general

A

Dual checks

76
Q

What case showed a Member can pursue an MR underpinned by a societal interest unique to them?

A

Omega Spielhallen

77
Q

Heavy lorries, air quality

A

Commission v Austria [2011]

78
Q

Fietje judgment

A

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

79
Q

What year was the heavy lorries, air quality case?

A

2011

80
Q

What approach does the ECJ take to Article 36?

A

Narrow approach - public morality hardly ever relied upon

81
Q

What are the two overarching difference between the two derogations?

A

Substantive and their availability

82
Q

what articles are relevant for public security and Article 36?

A

Article 346 - 348 TFEU

83
Q

Commission v Germany [1998] general

A

Uncastrated male pigs

84
Q

Omega Spielhallen general

A

Laser drone game prohibited

85
Q

In what two ways did the Commission reorient their legislative programme after Cassis?

A

Tackle inadmissible trade rules through Article 258 TFEU and harmonisation directed towards rules still admissible under Cassis

86
Q

Campus Oil v Minister for Industry and Energy

A

35% requirements by petrol importers need to be bought from state - ‘vital’

87
Q

What does Article 36 not allow under it?

A

Arbitrary discrimination or disguised restriction

88
Q

How did the CJEU reject AG Bot implicitly in Essent v Belgium?

A

Called the measure an MEE (not DA or IDA) and allowed environmental protection

89
Q

Article 191 TFEU

A

Applies to environmental protection but also national security and public health - protective measures even with scientific uncertainty

90
Q

Name two cases on least trade restrictive means proportionality test

A

Commission v Denmark; Commission v Germany

91
Q

Commission v Denmark general on proportionality

A

Danish beer bottles case - above a certain volume threshold

92
Q

Conegate v Commissioners of Customs and Excise JUDGMENT

A

For the Member to decide upon the nature of public morality, but the lack of a ban on domestic products removed Article 36 defence

93
Q

Preussen Elektra

A

AG Jacobs questioned if Article 36 really is exhaustive, arguing for relaxation between Article 36 and MR

94
Q

Why is Commission v Belgium 1992 technically not an exception to the fact that Article 36 is limited to that set down therein?

A

They found the measure not to be discriminatory because of special nature of subject matter

95
Q

Moorman on harmonisation and Article 36

A

Harmonisation for poultry health inspections were total so no justifications under Article 36

96
Q

What could it be better to call MRs?

A

‘Imperative public policy requirements’

97
Q

Essent v Belgium general

A

Electricity from renewable sources within Belgium

98
Q

Commission v UK 1984 general

A

Newcastle disease

99
Q

Why are MRs broader than Article 36?

A

Article 36 involves discriminatory measures striking at the heart of the EU

100
Q

What case gave an obligation to insert MR clauses in legislation itself when imposing PRs, unless Article 36 justification?

A

Foie Gras

101
Q

Moorman general

A

Poultry health inspections

102
Q

Commission v Germany [1987]

A

Less restrictive measure could have been adopted through the label

103
Q

What is broader, MRs or Article 36?

A

MRs

104
Q

What year was the Commission v Netherlands case on excess vitamins?

A

2004

105
Q

Cinetheque on MR

A

Cinema as a form of cultural expression MR

106
Q

Omega Spielhallen was a what kind of case?

A

FMS

107
Q

What principle do MRs extend and from which case?

A

‘Rule of reason’ from Dassonville

108
Q

Commission v Germany [1998] judgment

A

Harmonising measure prevented G from applying a different measures

109
Q

What are justifications under article 36 also subject to?

A

Conditions in Regulation (EC) No.764/2008

110
Q

What other grounds are there for validating discriminatory measures under Article 36, MAYBE, and according to what case?

A

Environment: Commission v Belgium 1992

111
Q

What case shows a broad margin of discretion when considering least trade restrictive means?

A

Schmidberger v Republic of Austria

112
Q

How did Keck confuse substantive overlap between Article 36 and MR?

A

Justifications for discriminatory SAs under Article 34 may only fall under an MR

113
Q

Commission v Germany [1987] on cost-benefit balancing

A

‘Proportionate to the aim in view’

114
Q

What AG and in what case argued for relaxation between Articld 36 and MR?

A

AG Jacobs in Preussen Elektra

115
Q

Commission v Germany [1987] on least trade restrictive means

A

Not least trade restrictive as could have required list of ingredients

116
Q

Cullet v Centre Leclerc general

A

Minimum fuel retail price fixed on French refinery prices

117
Q

what case gives an example of where total harmonisation prohibited Article 36 justification?

A

Moorman OR Commission v Germany [1998]

118
Q

Commission v UK 1983 general

A

UHT milk, second checks

119
Q

Commission v Germany Hospital on cost-benefit balancing

A

Purely economic objective might count in so far as it contributes to attainment of high-level of protection

120
Q

what year was the beer purity case

A

1987

121
Q

Henn and Derby on Article 36 general

A

UK ban on importation of pornography, but allowed possession

122
Q

Conegate v Commissioners of Customs and Excise general

A

Life-sized dolls

123
Q

Culler v Centre Leclerc judgment

A

Rejected argument that there would be civil disturbances without fixing fuel price

124
Q

articles 346 - 348 TFEU

A

Ability to take certain national security measures

125
Q

What do Craig and De Burca note about the wording of Article 36?

A

Might preclude the removal of IDA/DA distinction

126
Q

What happens in the case of Public Health as a justification?

A

Needs to satisfy both Article 36 and MR, especially when unclear if rule is discriminatory or IDA

127
Q

Commission v Austria [2011] general

A

Heavy lorries, air quality

128
Q

Officer van Justitie v Sandoz general

A

Muesli bars, vitamins

129
Q

What case shows Article 36 on public security?

A

Campus Oil v Minister for Industry and Energy

130
Q

Biologische Producten judgment

A

Dual checks unlawful if unnecessarily imposed as technical tests already done in state of origin

131
Q

What case showed that for proceduralisation test of proportionality, the court consider if Member has examined less trade restrictive alternatives with PROOF?

A

Commission v Austria [2011]

132
Q

Commission v Belgium 1992 general

A

Locally produced waste

133
Q

What case suggests MRs may be expanded to DA rules?

A

Essent v Belgium

134
Q

Through what Article of what Treaty was regulatory competence transferred to the EU as a result of Cassis?

A

Article 114 TFEU

135
Q

What is the ‘exception’ to the traditional rule that only discriminatory measures can be justified under Article 36?

A

Sometimes environmental protection, but no clear exceptions

136
Q

Beer purity laws

A

Commission v Germany [1987]

137
Q

What Articles allow Members to take certain national security measures?

A

Article 346 - 348 TFEU

138
Q

What did the court require in Commission v Netherlands [2004]?

A

Detailed, in-depth studies on assessment of risk

139
Q

Oebel

A

Protection of working environment MR

140
Q

When does a justification need to satisfy both Article 36 and MR?

A

When it is based on public health

141
Q

Commission v UK 1984 judgment

A

Disguised trade restriction

142
Q

Member has power to decide degree of protection afforded and the manner in which they achieve that level

A

Commission v Germany: Hospital

143
Q

What Advocate General and in what case advocated extension of MR to DA rules?

A

AG Bot in Essent v Belgium

144
Q

what case showed scepticism over legality of second checks for Article 36?

A

Commission v UK 1983

145
Q

Name at least one case on consumer protection as an MR

A

Commission v Germany 1987; Fietje

146
Q

what is the traditional rule on justifying non-discriminatory measures?

A

can only be done under MR

147
Q

How did Barnard describe proceduralisation of proportionality

A

‘good governance approach to proportionality’

148
Q

Why is it an issue that MRs are dependent upon agreement of outcome of adjudicative process?

A

Requires a national law to be removed when it is believed an MR should have saved it

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