FMOG Flashcards
What are Goods
Com v Italy
“products that can be valued in money and which are capable of forming subject of commercial transactions”
What is a QR: Geddo v Ente Nazionale Risi
“Measures which amount to a total or partial restraint of imports, exports, or goods in transit”
Quantitative restriction examples
R v Henn & Derby - UK did not allow sexually explicit material, absolute ban on entry = QR
ex. Parte Hedley Lomas - not granting export licence = QR
Rosengrad & Others
state monopoly is not automatically a QR
but will be a QR if there is no counter-balancing obligation (like allowing individuals to request state to buy for them)
What is a MEQR? Commission’s View
Can be found in (no-longer applicable) Dir/70/50
- includes max/min prices, hindering purchases, payment conditions, etc.,
What is a MEQR? Courts view
Dassonville
“all trading rules capable of hindering trade, directly or indirectly, actually or potentially, intra-community trade”
- discriminatory intent is not required
- “rule of reason” established (reasonable restraints are not caught by art.34)
Categories of MEQR:
DISTINCTLY APPLICABLE - discriminates as a matter of law
INDISTINCTLY APPLICABLE - two forms
a) INDIRECTLY discriminatory - discriminates as a matter of fact
b) NON-DISCRIMINATORY/mutual recognition - cassis de dijon
Fachverband der Buch-und
Austrian law = books imported cannot fix price lower than retail fixed price or publisher’s RRP at state of publication = MEQR
Com v France (Postal Franking Machines)
DISCRIMINATION IN FACT
- french authorities refused to approve British machines
- administrative discrimination = MEQR
(can be delay or refusing approval)
Com v Ireland (water supply pipes)
Irish council bid to tender incl. clause that said only use pipes complying with Irish standard (which only approved one company - Irish one)
INDISTINCLY APPLICABLE MEQR - restricted pipe supply to Irish manufacturer
Cassis de Dijon
Obstacles of trade = MEQR
1) NO discrimination needs to be intended
2) rule of reason confirmed
3) HOME STATE CONTROL - mutual recognition
- no dual burden
Com v Germany (german bier)
Labelling law = MEQR
- mutual recognition, home state power
Ministère Public v Deserbaus
French edam has to be 40%, germany tried to import 34.3% and call it edam
- french cannot restrict
- MEQR, mutual recognition
Rau
Belgium required margarine to be in cube packages
- MEQR, more difficult for importers to comply without incurring extra costs
Exports?
Same rules
but only applies if there is discrimination, and seems like if it is DISTINCTLY applicable (discrimination as a matter of law)
- Criminal Proceedings against Marco Gill
Cinematheque
yes SELLING ARRANGEMENTS are a MEQR
Torfean Borough Council v BBQ
Selling arrangements are MEQR
Sergus Oebel
Selling arrangements are not MEQR
Keck & Mithourard (confirmed in Tankstation)
SELLING ARRANGEMENTS ARE NOT MEQR
- no extra burden or cost
Opening hours = selling arrangement
Punto Casa SpA v Sindaco del Commune de Capena
Tankstation tHeustke
Familiapress
if its to do with composition of product, that is dual burden
not selling arrangement so MEQR
Dynamic Median Vetriebs
if you need to adapt product it isn’t a selling arrangement
Tommaso Mellato v Commendi Padova
Italian rule on how to package bake off bread was a selling arrangement = NOT MEQR
- because packaged at point of sale, so not a product rule
Alfa-Vita Vassilpoulous
national rule that bake off bread sellers have to have a fully equipped bakery even though its not necessary for baking bake-off bread
- NOT SELLING ARRANGEMENT SO MEQR
- governs production process of product
QUALIFYING KECK
1) rules concerning sales characterised as a product rule (relating to product)
2) can still be a MEQR if it discriminates in law or in fact
de agostini
selling arrangement is MEQR if it is discriminatory in law or fact
- ban on TV adverts to children under 12 and for skincare products = MEQR
- affects importers more
- outright ban on promotion = greater impact on importer
Gourmet International
swedish restriction on advertising alcohol except to traders
= MEQR
discrimination in fact because domestic consumers are more familiar with domestic products so affects trade
Doc Moris NV
German prohibition on pharmaceuticals being made available on the internet
- MEQR
affects importers more (german sellers may have dispensaries)
Herber Kamer
prohibition on advertising from insolvent estate
= NOT MEQR
not discriminatory, not broad ranging enough
Com v Italy (motorcycle trailers)
measures restricting end uses of products can be discriminatory and thus a MEQR if it hinders access to market
3 categories:
1) product regulations - MEQR, Cassis
2) Selling arrangements - Keck
3) Residual category - incl. end use regulations
Michelson v Roos
measures that restrict product use strongly = MEQR
test: hinders market substantially
ART.34 = NO HDE … exceptions?
EMANATION OF THE STATE - ex. party association of pharmaceutical importers
APPLIES TO CERTIFICATION ACTIVITIES OF PRIVATE BODIES - Fra.Bo
APPLYING TO STATE RE: INDIVIDUAL DOING MAIN ROLE - Spanish Strawberries, Schmidberger v Austria (MS has to take appropriate steps to ensure FMOG in territory even if obstacle created by private bodies)
Kohl v Ringelhan, UHT milk
Art.3 6is interpreted narrowly
Mandatory requirements
- protection of working environment (oebel)
- cultural expression (cinematheque)
- plurality of press (familiapress)
- protection of environment (recyclable bottles)
- preventing risk of undermine social security (decker v casse)
- fundamental rights (Schmidberger)
- protecting children (dynamic median)
- consumer protection (bier)
- public health
Tobacco Advertising I
TWO situations where art.114 can be used:
1) elimination of obstacles to exercise of fundamental freedoms
2) removal of appreciable distortions in competition
- both can be actual or future, and must be appreciable
Swedish Match , Arnold Andre
total bans can be adopted under art.114
Commission in World Farming
in minimum harmonisation measures
- UK cannot impose stricter standards re: export
NV v United Foods & PUBA
Proportionality - “suitability”
measure to be suitable to achieve its objective
Com v Denmark (recyclable bottles) - proportionality (2nd)
least trade restrictive = acceptable
for environmental protection, this measure is the least trade restrictive means of achieving objective in question
Com v Germany (bier) - proportionality
not least trade restrictive
consumer protection can be done by labelling requirements
(controversial! it is the least trade restrictive for level of protection germany wanted)
Fiete
labelling requirements may be a MEQR in itself
Eugen Schmidberger
Motorway closure = fine (least trade restrictive)
couldn’t just ban it (that would breach FOS)
Com v Denmark (recyclable bottles) - proportionality (3rd)
STRONG proportionality - cost benefit balancing
measure’s additional good has to be worth more than the additional bad
(the extra requirement that drinks sold must be in Danish state approved containers if sold over certain threshold not additional good outweighing additional bad)
Heavy Lorries
procedural approach
Com v Netherlands (Vitamins)
precautionary principle - if scientific uncertainty, MS enjoy discretion
- only if evidence is more than mere conjecture
