FM Goods Flashcards
Why free mvmnt goods?
Compete with larger economies, Sandholtz deregulation ‘fad’ of the time, failing national strategies, seemed like sensible option
What are goods (Italian Art)
Can be valued in money, subject to commercial transactions
Are charges permissable at all? (art 30)
Purpose and size irrelevant - Italian Art, backed in belgian diamonds, possible exception if there is a ‘specific benefit’
Van gend en loos absolute prohib
Art 110(1) Direct Discrim similar
Com v Italy, Regenerated oil v ordinary oil tax differences, didn’t import regenerated as they said ‘couldn’t prove’, contravened 110
Art 110(1) indirect discrim similar
Humblot/feldain, french tax brackets for cars, most in lower bracket produced in France and only imported were higher, contrast w greece case similar facts but obj was for environmental benefit, fine in this case as affected all cars incl greek prod
Art 110(2) protection/competition
French ‘sweet wines’ case, UK wine (import) v beer (domestic) tax case, found that products were similar as relationship between both seen w volume/alc strength/price. Up to court to decide if similar, no need for identical
Overall effects of articles
Art 30 TFEU:
Automatically unlawful
Art 110 TFEU:
Not automatically unlawful
Must be examined for discrimination
Must be examined for protective effect
110(1)/110(2)
110(1) charges must be equalised
110(2) remove protective element. It is a lesser modification than equalisation.
Latter does not have to mean equalisation
Lower cross-elasticity = lower ‘equalisation’ required. Modification required depends on degree of interchangeability. If it is low, low modification is required.
What is a QR?
measures which amount to a total or partial restraint of imports, exports or goods in transit - Geddo
MEQRs
Measures Equivalent to Quantitative Restrictions - incompatible w EU law apart from art 36 exceptions
What directive outlined MEQRs initially
Dir 70/50, no longer applicable but provided guidance on distinctly/indistinctly applicable
Distinctly Applicable MEQRs - Dassonville
Importation of Scotch whisky from France into Belgium
Belgium had a Certificate of origin requirements - a certificate proving the whisky was manufactured in Scotland france didn’t so it was hard to get them
Is the certificate of origin a measure equivalent to a quantitative restriction and therefore, examinable for compatibility with the Treaty?
Dassonville formula established:
All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as MEQRs
Indistinctly applicable MEQRs - Cassis de dijon
German authorities imposed a measure requiring that fruit liqueurs had a minimum alcohol content. Cassis only had the alcohol content of 15-20% so couldn’t be sold in Germany as a fruit liqueur.
Held that 1. when goods had been lawfully marketed in one country, they should be admitted into any other state without restriction UNLESS the state of import could successfully invoke one of the mandatory requirements. (prevent dual burden/mutual recog)
2. If there is disparities between MS law, obstacles for FM are permitted as long as they relate to public interest reasons (Reasonableness/Proportionality)
Cinetheque
Films could not be released to video for 12 months following cinema release - UK releasing after 3 months
Found was barrier to intra-EU trade in videos - could be justified but needs to be proportionate
Walter Rau
Belgium law required margarine in rectangular shaped tubs to distinguish it from butter.
Applying Cassis:
Mutual recog/proportionality
Dual burden (as would be legal everywhere but BE)
German Sausages
Ban on additives, held as MEQR as labels could simply be attached showing origin + additives, protecting consumer but allowing FMoG
Selling Arrangements are…
measures concerning the conditions for a product’s sale or use. E.g. pricing, hours of sale, where a good could be sold, advertising and distribution.
If selling arrangement affects market access, falls back under art 34
Keck
Criminal proceedings on traders for selling goods at a loss - French law banned the loss leader marketing practice. Keck claimed this rule was not compatible with Art 34 TFEU.
The Rule was not designed to regulate trade. It was an equal burden rule that may limit sales. Therefore no need for selling arrang to check comp with Art 34
Same effect on domestic as foreign product
Other selling arrangement cases
Tankstation - petrol stations, Punto Casa - italian sunday opening hours. Key theme is conditions of sales, and how they affect dom + imported
Ker-Optika
Hungarian leg prohib contact lense sales online, argued contra art 34
From keck, would be considered a selling arrangement, but CJEU took a broader ‘market access’ view, did restrict this and outright ban not proportionate. Held that it was contravening
De Agostini
Swedish advertising restrictions - 1. a ban on advertising aimed at children and 2. advertising on certain products like cosmetics or detergents without evidence.
Advertising is a selling arrangement (Leclerc). It was applicable to all traders as an equal burden rule.
They had a differential effect on marketing because Swedish consumers will be more familiar with Swedish products compared to other MS products.
Therefore, it fell Within Art 34 TFEU – Market access
Gourmet Case
Prohib on advertising of alcohol
Impedes market access of imported alcohol not as well known as dom
Exceptions to FMoG:
Authorisation
Comm v France - french fortified foods authorisation process slow + no mutual recog of other auths
Held to be MEQR
Exceptions to FMoG:
Public Health (proportionality)
Comm v DE, beer case with additives, prohib on such
Held disproportionate, not all additives are unhealthy, art 36 only allowed to be use in necessary cases
Exceptions to FMoG:
Explanation
Henn and Darby - cannot use disguised art 36 exceptions as discrimination
