EU single market

Question 1

Art 34

Answer 1

Will catch quantitative restrictions and all measures that have an equivalent effect, MEQR.

Question 2

Geddo

Answer 2

Defined quantitative restriction as ‘measures which amount to a total or partial restraint of imports, exports or goods in transit’.

Question 3

Dassonville

Answer 3

Definition of MEQR:

Defined measures having equivalent effect.
Belgium law provided that goods bearing a designation of origin could only be imported if they were accompanied by a certificate from the government of the exporting country certifying their right to such a designation.
Dassonville imported scotch whiskey into belgium from france without being in possession of certificate. Dassonville argued that the belgium rule constituted an MEQR.

HELD:
1) all trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentally, intra community trade are measures having equivalent effect.

2) Crucial element (para 5) in proving MEQR is its effect, a discriminatory intent is not required.

Question 4

Are import and export restrictions caught by art 34?

Answer 4

They are always caught by art 34.

Question 5

Commission v Italy

Answer 5

Italy subjected goods to requirements not imposed on domestic products. This was a case about registration of imported cars. It was caught by art 34.

Question 6

Commission v Ireland (Buy Irish)

Answer 6

A state cannot engage in a campaign to promote the purchase of domestic as opposed to imported goods.
State publicly campaigned the Irish goods with the ‘buy Irish’ symbol.
Held: even though the buy Irish symbol has not had much significant effect, it could not be overlooked (para 25)

Question 7

Commission v UK (marks of origin)

Answer 7

Where a state has rules on the origin-marking of certain good this will be caught by art 34.

Question 8

Case 12/74 Commission v Germany

Answer 8

Where a MS legislates which contains rules on origin making, this will only be accepted if it implies a certain quality in the goods, that they were made from certain materials/particular form.

Question 9

art 34 catches

Answer 9

1) Import and export restrictions
2) promotion or favouring of domestic products
3) price fixing

4)

Question 10

Cassis de Dijon

Answer 10

Emphasised the idea of mutual recognition.

Applicant intended to import the liquor ‘cassis de Dijon’ into Germany from France. The german authorities refused to allow the importation because the french drink was not of sufficient alcoholic strength to be marketed in Germany. Under German law such liquors had to have an alcohol content of 25%, whereas the French drunk had an alcohol content of less. The applicant argued that the german rule was an MEQR.

1) Cassis affirmed and developed the Dassonville judgment. It affirmed para 5. Art 35 could apply to national rule that did not discriminate against imported products, but which inhibited trade because they were different from the trade rules applicable in the country of origin.

Fundamental assumption was that when goods had been lawfully marketed in one MS, they should be admitted into any other state without restriction, unless the state of import could successfully invoke on of the mandatory requirements.

2) Cassis judgment encapsulated a principle of mutual recognition (para 14(4)).
3) Signalled a willingness to extend art 34 to catch indistinctly applicable rules.
4) Created ORPIs
5) Equally applicable rules can be MEQRs

Question 11

Déserbais

Answer 11

Importer of Edam cheese from germany to france was prosecuted for unlawful use of a trade name. In germany such cheese could be lawfully produced with a fat content of 34% whereas in France the name Edam was restricted to cheese with fat content of 40%. Importer relied on art 34 as a defence. EUCJ held in accord to Cassis, that the rule was incompatible with art 34 and could not be saved by mandatory requirements,.

Question 12

Deregulation requirements

Answer 12

1) Non-discrimination
2) Mutual Recognition
3) Market Access

Question 13

Direct Discrimination

Answer 13

Directly discriminate on basis of origin.

Question 14

Commission v Italy (art treasures)

Answer 14

Definition of goods:

1) Can it be valued in money?
2) Capable of forming a subject of a transaction

Italy imposed a tax on any art object leaving the country, they wanted to protect national heritage, but this was a charge of having equivalent effect to customs duty.

Question 15

Dassonville

Answer 15

Definition of MEQR:

1) All trading rules capable of hindering, directly or indirectly actually or potentally, inra-community trade are MEQR. (para 5)

Mr Dassonville wanted to sell Whiskey in Belgium. Belgium had a law that prohibited the import of produces without a certificate. Mr Dassonville did not have a certificate and was difficult for him to obtain a certificate. He claimed this law was an MEQR. CJEU gave a description of what constitutes an MEQU.

Question 16

Fra.Bo

Answer 16

Discussed Dassonville judgment and held that the mere fact that an importer might be dissuaded from introducing or marketing the products in question in the MS constitutes a restriction on the free movement of goods for the importer.

Question 17

Commission v Austria (Heavy Lorris)

Answer 17

A measure which seems at first glance to have equal effect can turn out to not be at a closer examination.

An austrian rule prohibiting heavy goods traffic from a motorway. Justification was on environmental grounds. It was argued that most heavy trucks on the road were transiting Austria, so were likely to be foreign.
Court held:

1) Duty to examine less restrictive options
2) Clear preference for measures much milder than total ban

Held: Austria did not give sufficient transitional period for the lorries to adjust to the ban. Therefore, the MS needs to factor in their interests and if you can avoid any harsh consequences do so.

Question 18

Mickelsson and Roos

Answer 18

Finnish government prohibited the use of jet-skis except on designated waterways and then did not designate any waterways, so that in practice jet-skis could not be used in Finnland. Held: market access is hindered.

Question 19

Mickelsson and Roos

Commission v Italy

Answer 19

These cases, there was no outright prohibition on the importation or sale of a product, but a measure which indirectly achieved more or less the same effect.

Question 20

Alfa Vita

Answer 20

Can prohibit sale by imposing a cost burden.

Greek law required all bakeries to have an operating licence, which was granted only if thy complied with a number of physical requirements, such as having an area for kneading bread. A number of supermarkets were prosecuted for not having this. Their defence was that they did not need to make their own bread products, but brought frozen bread. CJEU said that the rules were MEQRs because bread baked on the premises is a local product whereas frozen bread products may be domestically produced or imported. Imposing an unreasonable cost on the sale of a product, the rules would inhibit or diminish its sale and therefore import.

Question 21

AGM

Answer 21

Statements can be MEQRs where the person making the statement gives the opinion that these are statements are the position the state holds.

Safety official declared that machines were dangerous and did not comply with the directive. Sales of AGM machines were badly affected. Held: these statements were MEQRs.

Question 22

Commission v Ireland (‘Buy Irish’)

Answer 22

State cannot campaign in favour of national products.

Ireland wanted to promote domestic goods so established a council which encouraged Irish products.

Question 23

Commission v Ireland (Irish souvenirs)

Answer 23

Marks of origin is an MEQR

Ireland required some foreign products (souvenirs) to be labelled as foreign. Held: it was a MEQR. As the labelling requirement placed a burden on foreign suppliers (and not domestic suppliers), trade could be restricted. Such a requirement (only affecting foreign suppliers) is classed as a discriminatory restriction. Discriminatory restrictions can only be justified under Art 36 TFEU, unlike non-discriminatory restrictions, which can be justified either using Art 36 TFEU or CJEU-developed ‘overriding reasons of public interest’ (ORPIs).

Question 24

Van de Haar

Answer 24

There is no de minimis principle in relation to art 34. If a measure is capable of Dassonville criteria, then even though hinderance is slight it is still MEQR.

Question 25

Mathot

Answer 25

Wholly internal measures will be outside art 34.

Question 26

Pistre

Answer 26

Mere creation of a distinction between national and foreign may itself amount to a barrier to imports. French law on "mountain ham". Mountain ham is good, and so to market such harm, french law regulated what could be called mountain ham. However, in practise it was only possible to comply with these rules if the ham was french. Realising that this was discrimination, the french government chose not to apply the rules to imports. French producers complained. Held: by having a designation with which only domestic ham could comply, french law provided a marketing advantage to national ham over foreign ham.

Question 27

Commission v Ireland

Answer 27

Private actors Link between state and government need not be watertight.

Question 28

Fra.Bo

Answer 28

Private actors German body which certified water and gas pipe components. This certification procedure was particularly inaccessible to foreign producers. While the body was a private organisation, its certificates were recognised in german law, and was the only body who authorized such certificates, it was the bearer of public law privileges and power in the form of unique certification rights.

Question 29

Commission v France

Answer 29

Indirect horizontal effect = where the state does not actively support market closing measure, but refrains from taking action against them. France had violated a combination of art 34 and 4(3) TEU (duty of loyalty) by failing to remove french farmers who were blocking boarder crossings to prevent imported agricultural goods from reaching the french market.

Question 30

Schmidberger

Answer 30

Leading case on indirect horizontal effect. Group of austrian demonstrators blocked motorway coming into Austria from Italy, as a protest against the pollution caused by transit traffic in the valleys. This restricted the import of goods by blocking traffic. Therefore, austrian government had an obligation as in Commission v Francce to clear the roads. However, this obligation had to be balanced. Question: did the Austrian government behave in a proportionate and reasonable way?Held: when read with art 4(3) TEU, a MS has to take all necessary and appropriate measures to ensure fulfillments of the treaty. But, they had not violated art 34.

Question 31

Commission v German (German Beer)

Answer 31

German rule defined all the ingredients permitted in beer, this was challenged as contrary to art 34 because many foreign beers used ingredients not on the list so were denied access to the german market under the name beer Justification? = Germany said it was for consumer protection, that the rule was necessary to prevent consumers being deceived about what they are buying. Held: 1) consumer conceptions are likely to evolve and vary with each MS. The court sugguested that what is called beer should be understood in the context of other national definitions and EU definition. Consumers may have preferences. However, prohibiting the sale of non conforming beer was disproportionate. Consumers could be adequately protected by a labelling requirement,

Question 32

Commission v UK

Answer 32

The legislation of a MS must not crystallize consumer habits

Question 33

Commission v France (foie gras)

Answer 33

Similar to Commission v Germany French law laid out very restrictive requirements which needed to be satisfied before a product could be labelled and marketed as ‘foie gras’. Did these requirements constitute a measure having equivalent effect to a quantitative restriction on trade between Member States (in breach of Art 34 TFEU)? Held: yes - if someone tried to market generic pate as foie gras, it would be justifiable to prevent this on consumer protection grounds. However, the fact that foie gras is made in slightly different ways in other places is not enough to justify a prohibition on using the name.

Question 34

Clinique

Answer 34

German government objected to the marketing of cosmetics under that name because it was too similar to Klinik, the German word for hospital. Consumers might therefore think that the products were medically approved. CJEU disapproved, it felt the dangers did not justify the trade-hidering effect of the rule. The european consumer is expected to show a cetain awareness and scepticism.

Question 35

Commission v Denmark

Answer 35

Environment is an OPRI Lost based on proportionality

Question 36

Radlberger

Answer 36

by goods, within the meaning of the ... Treaty, there must be understood prod- ucts which can be valued in money and which are capable, as such, of forming the subject of commercial transactions’ (3). Environment is an ORPI Environmental scheme meant that a huge burden was placed on non german producers. Held: Environment could be a justified reason. But proportionality dictates that producers be given a reasonable amount of time to adapt to the new rules.

Question 37

Keck

Answer 37

Set limits to what equally applicable rules could be an MEQR. It excluded selling arrangements as long as they were equal in impact. 1) The rules governing the way products are sold are not MEQRs within the meaning of Dassonville and art 34 TFEU. However, these measures must not have a greater effect on imports than they do on domestic goods or producers. If this is the case, even measures concerning selling arrangements will be MEQRs. (1) Dassonville is not engaged “provided that these [selling arrangements] [1] apply to all affected traders operating within the national territory and [2] provided that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other [MSs]” (known as the two Keck conditions). Keck prohibits: 1) Measures which have a greater effect on imports than domestic products. 2) Measures which effectively prevent certain imports from being sld.

Question 38

Torfaen BC v B&Q

Answer 38

Sunday trading was caught by art 34. But it was justified.

Question 39

Ker-Optika

Answer 39

Rule which prevented the sale of contact lenses by the internet, a selling arrangement of unequal effect.

Question 40

Familiapress

Answer 40

If a rule is a product requirement and selling arrangement it will be caught by art 34. Held: a rule which prohibited the marketing of magazines containing prize competitions fell within art 34 without need to discuss discrimination. Even though the rule contained a method of sale promotion, ie. a selling arrangemnet, it bore on the content of the product and was therefore a product requirement. The trader could not import its magazines without altering the content.

Question 41

Schwarz

Answer 41

Rule which prohibited sale of unwrapped bubblegum from vending machines. This was said to be unhygienic. Court found this to be a product rule.

Question 42

Dynamic Medien

Answer 42

age-limit labels on videos and DVDs - protection of minors, fundamental rights of children. It was held to be a product rule because the rule restricted the method sale.

Question 43

Merellato

Answer 43

Where a producer is required to change some physical aspect of the product that she ships = product rule. Where not = selling arrangement. Concerned Italian law on semi-baked bread. This is bread that is brought by shops as half-baked bread frozen dough. The shops then finish baking it in their own ovens. This enable them to sell warm bread. Italy introduced a rule requiring shops selling bread made by this process to label it, indicating its nature. CJEU held: this was a selling arrangement // contrast Schwarz. The difference in Schwarz was that the nature of the adjustment was such that it could only realistically be done by the producer. One could not expect vending machine operators to put balls of bubble gum into individual sealed bags. Schwarz, therefore, imposed a producer burden. However, in Morellato, there was no need for the producer to change anything at all. The shops had to put the bread into the bag.

Question 44

Alfa Vita

Answer 44

greek law required vendors of these to have all the facilities that were required for a normal bakery, including an area to knead the bread. CJEU held: not a selling arrangement or product rule but followed under Dassonville.

Question 45

Commission v Greece (Greek milk)

Answer 45

After keck - legislation which applies equally to all traders and not discriminatory did not fall within art 34.

Question 46

De Agostini

Answer 46

television advertising aimed at children,

Question 47

Gourmet International Products

Answer 47

advertising alcohol. Held: probiting alcohol advertisment impeded access to the market by products from other MS more than it impedes access by domestic products. 1) A total ban on advertising by its nature puts imported products at a disadvantage and therefore caught by art 34. OR 2) Restrictions that prevent market assess are caught by art 34 without the need to prove a discriminatory effect. Construct De Agostini where there was a partial restriction on trade.

Question 48

DocMorris

Answer 48

Unequal selling arrangements CJEU found that a prohibition on internet sales of pharmaceutical products had an unequal effect because it would inevitable pharmacies at a distance would mostly likely be effects, i.e. those who were foreign.

Question 49

Groenveld

Answer 49

A measure within art 35 must provide some specific disadvantage for exports, by comparison with goods sold domestically thereby encouraging domestic sales at the expense of export sales.

Question 50

Ravil v Bellon Import

Answer 50

Italian rule on sale of grated cheese. A specific type of cheese could only be sold under that name in grated form if it had been grated within the region of production. It it was exported whole and grated abroad, the name could not be used. Held: this fell under art 35 MEQR because it treated cheese which had been transported across a border differently from cheese which has been transported within the specific area.

Question 51

Gysbrechts

Answer 51

Equally applicable rules are within art 35. rule which applies without distinction between domestic sales and exports. Held: within art 35.

Question 52

Bluhme Commission v Belgium (Belgium Waste)

Answer 52

As with Art 30 TFEU above, the CJEU takes a broad view of what are ‘goods’ for the purpose of Arts 34-35:

Question 53

Are measures of private parties excluded?

Answer 53

Yes but on strict reading of art 34 and 35. But CJEU has taken a broad view: 1) Commission v Ireland [1982] (‘Buy Irish’) 2) AGM 3) Fra.Bo

Question 54

Obstacles to trade caused by disruptive private bodies where state has omitted to act.

Answer 54

1) Commission v France | 2) Schmidberger

Question 55

Measures affecting only domestic products fall outside EU law

Answer 55

1) Mathot | 2) Pistre

Question 56

Where an MEE is found to be discrimminatory where can we justify it?

Answer 56

Art 36 TFEU.

Question 57

Keck

Answer 57

Thus the CJEU distinguished between a) product rules or conditions - caught by Art 34; and b) certain selling arrangements – not caught by Art 34 but only if the two conditions in para 16 are satisfied. 1) Provision must apply to all all affected traders within the same territory. 2) Must affect them in the same manner - in law and in fact.

Question 58

What is a selling arrangement?

Answer 58

1) restrictions on when goods may be sold: Torfaen v B & Q 2) restrictions on where or by whom goods may be sold: Commission v Greece (Greek milk) 3) rules on when certain goods should be sold with or without packaging: Morrellato Alfa Vita 4) internet sales: DocMorris 5) advertising restrictions: Leclerc-Siplec De Agostini Gourmet International Products (GIP) 6) and price controls: Belgapom v ITM Belgium (minimum profit margins on transactions)

Question 59

What is a product requirement?

Answer 59

1) Mars 2) Familiapress 3) Schwarz

Question 60

familiapress

Answer 60

Austria imposes a total ban on lotteries in the press, this is permitted under german law. The restriction against having prizes or games in a Newspaper is not a Selling Arrangement as defined in Keck, but rather a product requirement under the definition set out in Dassonville. With regards to justifications, the cour acknoledges that they have to look at fundamental rights.

Question 61

De Agostini

Answer 61

Swedish ban on TV advertising directed at children under 12 years old – cross-border TV broadcast – measure was a law relating to ‘selling arrangements’, but did not affect domestic traders and importers in the same way in law and fact, as greater inhibition for importers, where TV advertising is the only way to reach the market. Held: in the case of a partial ban on advertisements, where other means of advertisement are allowed, discrimination needs to be established before the rule can be within art 34.

Question 62

DocMorris

Answer 62

German prohibition on internet/mail order pharmacies had a greater impact on pharmacies not established in Germany, so fell within Art 34.

Question 63

Leclerc-Siplec

Answer 63

Alternative approaches - the market access test

Question 64

The CJEU has not gone this far – fear of retreat from formalism – but recent case law suggests a trend toward a market access approach whereby selling arrangements fall within Art 34 if they are likely to restrict the access of imported goods to a greater extent than domestic goods

Answer 64

De Agostini, GIP, Doc Morris Alfa Vita

Question 65

Market acess test has been asserted in two cases:

Answer 65

Market access has also been asserted in two recent cases where the CJEU has distinguished Keck in cases involving restrictions on the use of products even though it had be argued that the effects of the measures were analogous to selling arrangements: 1) Commission v Italy (motorcycle trailers) 2) Mickelsson and Roos (jet skis)

Question 66

Public morality case

Answer 66

R v Henn and Darby - prohibition on imports of porn Dynamic Medien - age limit labels on videos and DVDs

Question 67

R v Henn and Darby

Answer 67

prohibition on imports of porn - public morality justification. It is for each MS to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its own territory, this was not affected by the fact that different rules applied in different areas of the UK.

Question 68

Campus Oil

Answer 68

Public security justification. Although proportionality - the prices set must be at a competitive level and the quantity of oil must not exceed the minimum supply requirements of the state.

Question 69

Protection of health and life of humans

Answer 69

Schwarz - public health justification accepted

Question 70

Life of animals

Answer 70

Bluhme

Question 71

protection of industrial and commercial property

Answer 71

Donner

Question 72

Is the treaty justifications and exhaustive list?

Answer 72

yes: Commission v Ireland (Irish souvenirs)

Question 73

Protection of environment cases

Answer 73

1) Commission v Denmark 2) Commission v Austria 3) Radlberger

Question 74

Cinéthèque

Answer 74

Under french law, films could not be re-issued on video or sale or hire within one year period of cinema showing. Cinetheque offered recordings of films within the period. CJEU held: ORPI of protection of cinematograhic works was allowed.

Question 75

Familiapress

Answer 75

CJEU indictated that the maintenance of press diversity may constitte an ORPI. Prohibition of publishers from including prize competition n their magazines.

Question 76

Schmidberger

Answer 76

freedom of expression, freedom of assembly – exercise of fundamental rights

Question 77

Mickelsson and Roos

Answer 77

transport safety

Question 78

Walter Rau

Answer 78

Indistinctively applicable rule Belgium requirement that all margarine for retail sale, both domestic and imported be in cube shapre. This was discriminatory in effect because imports would become more expensive, since they would be obliged to adapt their packaging in order to comply with the requirements.

Question 79

Walter Rau

Answer 79

Necessary Legislation that retailing of cube shaped form of margarine. Government held that this was necessary to prevent the confusion between margarine and butter. Cjeu HELD: accepted justification, but legislation prescribing a particular form goes further than necessary to achieve the desired objective. Customers can be protected just as effectively by other measures such as a labelling requirement.

Question 80

Commission v Denmark (recycled bottles)

Answer 80

Court accepted that protection of the environment could be an ORPI. This required all beer and soft drinks to be re-usable and subject to a return system and all containers to be approved but can use non-approved containers for quantities not exceeding 3000. Held: the deposit and return system for beer and soft drink containers were proportionate. But the restriction on the quantity of beer and soft drinks that could be marketed in non-approved containers was disproportionate to the objective pursued. Only approved ontainers could be returned to any retainer. Limitation on use of non-approved containers went further than necessary to protect environment.

Question 81

Burmanjer

Answer 81

CJEU left it to the referring court to decide if the measure was a selling arrangement – Beligum rules applying to itinerant sales on the public highway constituted ‘selling arrangements’. Court sometimes leaves it to the national court to assess the impact of restrictions.

Question 82

De Agostini

Answer 82

CJEU has recognised that national rules restricting or prohibiting product advertising can be a greater impediment to market access for imported products than for domestic products. Swedish legislation prohibited tv advertising towards children under 12. CJEU held: a producer which is unable to promote its products in another MS ma be prevented from penetrating a new market. Whilst this is a selling arrangement, the Keck exception does not apply because of their discriminatory effect.

Question 83

What does art 36 allow?

Answer 83

derogation from the principle of free movement of goods.

Question 84

Is art 36 an exhaustive list?

Answer 84

yes - Commission v Ireland (Buy Irish). Cassis rule of reason could not apply in this case because it was a distinctively applicable rule.

Question 85

What does art 36 lay down?

Answer 85

Proportionality requirement | Measures must not constitute "a means of artbitray discrimination or a disguised restrictiotn on trade between MS".

Question 86

Commission v UK (poultry meat)

Answer 86

CJEU decided that a UK measure which effectively imposed a ban on import of turkey meat, introduced to prevent the spread of a disease was arbitrary and a disguised restriction on trade to protect domestic products because it was introduced in haste near christmas and the measures the french had already prevented the disease.

Question 87

Conegate

Answer 87

Consignment of inflatable dolls of a sexual nature imported from Germany seized by the UK on the grounds that they were indecent and seized them justified by public morality. CJEU held: it is for MS to decide upon the obsence or indecent nature of goods. However, cannot restrict when in the UK they do not restrict this.

Question 88

Commission v Germany (beer purity)

Answer 88

German legislation required all drinks in germany which were Bier, to be produced from certain ingredients and imposed an absolute ban on marketing of beers containing addiatives. Goverment held that additives presented a greater risk to public health. Held: not good justification. The risk must be held on basis of relevant scientific research.

Question 89

can economic interests justify restrictions on the free movement of goods?

Answer 89

No - campus Oil.

Question 90

Is enviornment a justification under ART 36?

Answer 90

Commission v Belugium (Belgium Waste) - the Court of Justice took account of environmental protection in considering. This judgment is not clear though.