EU single market Flashcards
Art 34
Will catch quantitative restrictions and all measures that have an equivalent effect, MEQR.
Geddo
Defined quantitative restriction as ‘measures which amount to a total or partial restraint of imports, exports or goods in transit’.
Dassonville
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.
Are import and export restrictions caught by art 34?
They are always caught by art 34.
Commission v Italy
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.
Commission v Ireland (Buy Irish)
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)
Commission v UK (marks of origin)
Where a state has rules on the origin-marking of certain good this will be caught by art 34.
Case 12/74 Commission v Germany
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.
art 34 catches
1) Import and export restrictions
2) promotion or favouring of domestic products
3) price fixing
4)
Cassis de Dijon
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
Déserbais
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,.
Deregulation requirements
1) Non-discrimination
2) Mutual Recognition
3) Market Access
Direct Discrimination
Directly discriminate on basis of origin.
Commission v Italy (art treasures)
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.
Dassonville
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.
Fra.Bo
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.
Commission v Austria (Heavy Lorris)
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.
Mickelsson and Roos
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.
Mickelsson and Roos
Commission v Italy
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.
Alfa Vita
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.
AGM
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.
Commission v Ireland (‘Buy Irish’)
State cannot campaign in favour of national products.
Ireland wanted to promote domestic goods so established a council which encouraged Irish products.
Commission v Ireland (Irish souvenirs)
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).
Van de Haar
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.
Mathot
Wholly internal measures will be outside art 34.
Pistre
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.
Commission v Ireland
Private actors
Link between state and government need not be watertight.
Fra.Bo
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.
Commission v France
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.
Schmidberger
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.
Commission v German (German Beer)
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,
Commission v UK
The legislation of a MS must not crystallize consumer habits
Commission v France (foie gras)
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.
Clinique
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.
Commission v Denmark
Environment is an OPRI
Lost based on proportionality
Radlberger
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.
