Free Movement - 34-36

Question 1

Two measures prohibited by Article 34:

Answer 1

1. Quantitative restrictions on imports/exports;

2. Measures having an equivalent effect to quantitative restrictions (MEQRs).

Question 2

Quantitive restriction:

Answer 2

One where imports or exports are either partially or totally restricted. This would include quota systems, bans, and can potentially also be any form of licensing system.

Question 3

Key case and definition of MEQRs:

Answer 3

Procureur du Roi v Dassonville: involved a Belgian law which required certain products (Scotch whisky) to be sold only if they had a certificate of origin included with them. Traders involved prosecuted for selling without certificate, but had bought it from France where no certificate required.
All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.

Question 4

Weakness of Dassonville definition:

Answer 4

Lacked distinction between distinctly and indistinctly applicable measures: Directive 70/50/EEC.
Distinctly: those which apply only to imported.
Indistinctly: apply equally to imported goods and domestically produced goods.

Question 5

Indistinctly applicable measures example, case:

Answer 5

Walter Rau v De Smedt: requirement in Belgium for all margarine sold there to be contained in cube-shaped boxes.

Question 6

Cassis de Dijon:

Answer 6

The CJEU introduced two principles to address the problems caused by its previous failure in Dassonville to distinguish between distinctly applicable and indistinctly applicable measures. These would allow exceptions whereby indistinctly applicable measures would not be subject to Article 34, and therefore allow them to stand.

Question 7

The first Cassis rule:

Answer 7

The rule of reason. Restrictions would be allowed for indistinctly applicable measures if they could satisfy certain mandatory requirements, such as:
- effectiveness of fiscal supervision;
- protection of public health;
- fairness of consumer transactions.
General rule is that if a measure is necessary, then it can be allowed under the rule of reason. Necessary = proportionate, for example, bam in Cassis was not proportionate, as labelling would have been enough to protect the health of consumers.

Question 8

The second Cassis rule, and case:

Answer 8

Mutual recognition. Provided that the products have been lawfully introduced into one Member State, then there should be no reason why they should not be imported into another.
Commission v Germany (Beer Purity Laws): beer from other EU States that did not comply with the Germany beer purity law could be imported and could be called beer because it was lawfully sold in other EU States.

Question 9

Cassis interaction with Dassonville:

Answer 9

The judgment in Dassonville was far too broad in its scope, and therefore there were some indistinctly applicable measures which should be excused despite being breaches of Article 34 under the Dassonville formula. This development was important because it maintained the strict rules for blatant breaches such as quantitative restrictions, but began to make allowances for some types of MEQR. Cassis considerations can be considered exceptions to the general rule under Dassonville.

Question 10

Liberalisation of Article 34, Keck & Mithouard:

Answer 10

French law prohibited the resale of goods that had not been altered or repackaged at a price lower than the price at which they had been bought, in order to prevent so-called ‘predatory pricing’ (process of short-term loss in order to force competition out of the market).
Where a measure was indistinctly applicable, if that measure constituted a ‘selling arrangement’, then it would not breach Article 34.

Question 11

Effect of Keck:

Answer 11

At first glance, Keck appears to do nothing more than split indistinctly applicable measures into two further sub-groups; however, the case was significant in that it halted the advanced use of Article 34 by traders where they were challenging national rules only because they limited their commercial freedom.
For example, Sunday trading laws where DIY traders were using EU law to directly challenge the rules in the UK: Stoke-on-Trent CC v B&Q.
Keck was therefore further refining rules concerning national differences and creating a situation whereby such differences were not to be removed just because the rules in one country were stricter than in others. This then ties in with the need for a proportionate approach - allowances made where those differences are justified.

Question 12

Article 36 provides situations where MS may be excused by a breach of Art. 34 or 35, however:

Answer 12

1. The list is exhaustive;
2. Proven ulterior motives can prevent a restriction being justified under Article 36;
3. Where rules have been harmonised at EU level, then a measure may not be justified under Article 36;
4. Provisions are narrowly construed and must satisfy the test of proportionality.

Question 13

Article 36, protection of life or health of humans, animals, and plants:

Answer 13

Rewe - v Landwirtschaftskammer: inspection requirement which only applied to imported apples was justified because of the real risk to health from something which was not present in domestic apples.

Question 14

Article 36, comparison for public morality:

Answer 14

R v Henn & Darby: justified prohibition on pornography due to illegality in the UK.
vs.
Conegate v Customs & Excise: prohibition not justified as products were not prohibited in the UK.

Question 15

Geddo definition of QR:

Answer 15

“Measures which amount to a total or partial restrain of imports or exports in transit.”