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EULAW1 > FREE MOVEMENT OF GOODS 1 > Flashcards

FREE MOVEMENT OF GOODS 1 Flashcards

1
Q

today for free movement of goods?

A

build foundations for free movement of goods - next week case law - key for exam

= BACKGROUND ECONOMIC INTEGREATION on which internal market built, on which fm of goods is built

PART 4 ON SLIDE IS EXAMINABLE !

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2
Q

what is it when we think about internal market and fm of goods?

A

think internal market and fm of goods = based on free trade e.g economic integration

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3
Q

what is part 1?

A

Part I: Background in economic integration

  1. Stages in economic integration
  2. Options for post-Brexit trade with the EU
  3. Two types of economic integration in the EU - this part = important for exam
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4
Q

what was the orginial idea of eu?

A

original idea of eu was economic intergration was

-reason for this : idea was to make war impossible in europe , we ve come along way from 50’s.

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5
Q

Part I.1: Stages in economic integration - what is first stage?

A

look table - bottom is the highest level of economic integration and top lowest

Free trade area (FTA)

  1. starting of with free trade agreement - future uk eu relations all about if u = so you basically have fm of goods when have free trade agreement -

idea of free trade area is to abololish all itnernal borders for free movememnt of goods - e.g good produced in germany go into uk easily

what are customs duties - e.g u have to pay , if you dont have free trade agreement you have to pay

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6
Q

Part I.1: Stages in economic integration - 2nd stage?

A

2nd - customs union - FTA + common external customs tariff

means at border = fee or tax - common tariff - mic cut out

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7
Q

Part I.1: Stages in economic integration - 3rd stage?

A

3rd - Common/single/internal market (IM) - CU + free movement of persons, services and capital

  • e.g me - me coming over from germany to bham teaching aston = fm of workers without any restrictions visas etc
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8
Q

Part I.1: Stages in economic integration - 4th stage?

A

4th-Economic union (EU)- IM + common economic policies and institutions

  • for e.g have common inst btw uk and germany etc - idea to create level playing field for all traders in ey
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9
Q

Part I.1: Stages in economic integration - 5th stage?

A

5th - Political Union (PU) - EU + integration beyond economics, e.g. police, foreign policy

  • steps in int - highest to lowest level

where do you think eu is on level of integration within these stages? - eu in middle, free movement of goods and services to economic union but we dont have full economic union bc full would have single currency and common fiscal policy

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10
Q

Part I.2: Options for post-Brexit trade with the EU - what did jeremy corbyn propose?

A

look at brexit and what jeremy corbyn proposed

  • saying a new comprehensive customs union e.g no itnernal borders btw germany and uk, sit we have in eu thats what he wants post brexit aswell
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11
Q

Part I.2: Options for post-Brexit trade with the EU - why did he propose customs union?

A

to avoid extra costs of tariffs - concerned goods produced in uk that enter eu market and he wanted north irish border - no hard border, everyone is happy

hw to have this sit we only need free trade agreement we dont need custom union cos mean external tariff, so why is jeremy corbyn going further

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12
Q

Part I.2: Options for post-Brexit trade with the EU - more support for custom union?

A

What Prof. Woods is saying is:

  • EU currently has trade agreements with over 50 states.
  • BREXIT would mean that the UK has to start from scratch to rebuild agreements with those states
  • The UK would be negotiating new trade deals on the basis of having 3.5% of world GDP, rather than as part of a bloc with 23% of world GDP
  • so she making arg for economic power, eu can get better trade deals than britian on its own - jc proposed to stay within customs union, to use that power

also looks like eu dictating power eu knows they are based on trading negotiations

this is jeremy corbyns option, we have other options to

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13
Q
  1. Options for post-Brexit UK trade with the EU:

not so important

A
  1. Options for post-Brexit UK trade with the EU:

Join the EEA/EFTA (Norway-model)  Part of internal market, but UK would be a rule-taker

Deep and special partnership (Theresa May)
A new UK-EU customs union (Jeremy Corbyn)
Eliminates internal tariffs and quotas between UK-EU for goods exported to EU countries
P (likely scenario): EU decides external tariffs on goods imported from outside the EU, with UK having no input into EU trade policy

No deal, i.e. trade with EU under World Trade Organisation rules  P: costly

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14
Q
  1. Options for post-Brexit UK trade with the EU: what is question to ask?
A

would eu post brexit allow eu uk as only non ms to join negotiations - dont see that happening, jorbyn corbyn is as likely as theresa mays - we currently only have proposals post brexit

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15
Q

Part I.3: Two types of economic integration in the EU

how does economic int in eu work?

A

idea is - to make separate national markets into one internal market:

can do by 2 categories

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16
Q

Part I.3: Two types of economic integration in the EU - what is the aim ?

A

1st one = positive int -

aim = to remove barries/ borders to trade - harmonise ms and create level playing field, building common framework

Actor: EU legislature adopts legislation (e.g. Art. 114 TFEU)

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17
Q

Part I.3: Two types of economic integration in the EU

: how did barriers come as result in first place.

A

Such barriers may result simply from the fact that regulatory rules vary from MS to MS
E.g. Different laws about how to label cigarette packs

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18
Q

Part I.3: Two types of economic integration in the EU

: e.g of cigarette packs - POS INTEGRATION

A
  1. can see smoking kills, 2 can barely see - 2 compare cig packs - cant export in uk barrier to trade is packaging law and remedy is

to adopt leg that harmonises law and make 1 packaging law for whole of eu
= POSITIVE INT

  • doing so have costs
  • suprise cost, loss of economies of scale, information costs etc

POS JUST ABOUT FREE TRADE

= 1 WAY OF ECONOMIC INT IN EU

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19
Q

Part I.3: Two types of economic integration in the EU

: what is the 2nd type of economic integration?

A

negative integration

Removal of existing barriers to trade (tariffs, quotas, packaging and product standards)
De-regulatory approach

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20
Q

Part I.3: Two types of economic integration in the EU

: summarising negative integration

A

Actor: the courts (national and CJEU)

e.g uk infringe on national cts what does national ct have to do in this case with uk law = dissapply = supremacy of eu law - removal of existing barriers to trade

and what doc allows u to enforce ur eu rights in nationa courts = DIRECT EFFECT e.g allowed to rely on eu law and then antioanl ct disapplied national law = deregulatory effect

freemovement of goods= eliminating barriers to trade

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21
Q

Part I.3: Two types of economic integration in the EU: overall of free movement of goods in eu law

A

remeber negatove int bc this is what freemovement of good in eu law about = eliminating national BARRIES TO TRADE

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22
Q

what have we finished now?

A

Finished backgroud, finished economic int- now look next at internal market and more details of what internal market means - remeber fm of goods is about internal market

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23
Q

what is part 2?

A

Part II: The internal market

The internal market: An introduction
The legal background
The four freedoms: common features

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24
Q

what is internal market?

A

The internal market – An introduction

  • Definition: “Internal market” refers to the EU as one territory without any internal borders or other regulatory obstacles to the free movements of goods and services.
  • TFEU “seeks to unite national markets in a single market”
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25
Q

How does Eu achieve internal market

A

How does the EU achieve the internal market?

use Positive and negative integration = tom achiever cross border trade

Aim: make trade between EU countries as easy as trade within them, by removing tariffs, quotas etc.
Aim: create a level playing field

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26
Q

What is heart of internal market

A

What is at the heart of the internal market? Cross-border trade!

= trade and no borders

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27
Q

What is the legal background of this

A
  1. The internal market: the legal background

Article 26 TFEU
‘1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.
2.The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

  • just read dont take in
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28
Q

Articles for legal background of internal market

A

= ARTICLE 26 TFEUM=MENTIONS INTNERNAL MARKET - ONLY LOOKING AT FRREE MOVEMENT OF GOODS , THERE ARE OTHER 3 FREEDOMS BUT WERE DOING THIS - ART 28 -37 = FREE MOVEMENT OF GOODS

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29
Q

What are the four freedoms

A
  1. The four freedoms – common features
    - Key idea: removal of barriers to free movement within the EU imposed by national legislation or administration, except those barriers which are justified in order to protect some recognised national interest

Four freedoms are about negative integration!
Exception clarifies: no absolute free movement in EU

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30
Q

slide four freedoms my analysis:

A

look common freedoms - especially in prob q in exam how step by step need to answe this and come back next week

here you can say theres no absolute freedom in eu - u can justify national laws and why u have this pic on cigarette packs

barriers to free movement = packaging requirements etc laws were looking at

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31
Q
  • PROBLEM Q- starting point
A
  1. The four freedoms – common features
    - Starting point: a measure (e.g. national law) raises issue relating to free movement. Three issues must be examined
  2. SCOPE
  3. BREACH/RESTRICTION
  4. EXCEPTION/JUSTIFICATION
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32
Q
  • PROBLEM Q?
A

1st step is law within scope of free movement of goods

does it breach

and if does may be justifed

so q what is justification? what is the public good?

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33
Q

What is meant by scope

A

(1) Scope
1. Does the case fall within the field of application (scope) of the freedom?
2. Does the case involve a “good” (for free movement of goods)?

  1. Is there a cross-border element? Remember: Cross-border trade is at the heart of the internal market
    Horizontal direct effect of the four freedoms?
34
Q

So to fall in scope

A

so to fall with scope

a is it a good ?

b is there a cross border elem- needs to cross ms border- same for freedoms

  1. horizontal direct effect- not really doing it
35
Q

What is breach / restriction

A

(2) Breach/restriction

Is there a breach of a fundamental freedom?
Three types of measure that can breach the fundamental freedoms. Measures with the effect of:ssc

Direct discrimination (≈ distinctly applicable measures) = you treat goods differently in law because they are foreign; e.g. import restrictions

Indirect discrimination (≈ indistinctly applicable measures) = same treatment in law, but differential treatment in fact

AND, INCREASINGLY
Non-discriminatory measures = measures apply equally in law and in fact

36
Q

What about breach or restriction

A

breach and restriction- BIG TOPIC

when do we have restriction - where do we have breach

37
Q

What are the 3 different breaches

A
  • have 3 different breaches for fundamental freedom - easiest 1 =
    1. direct discrim - e.g only gonna allow 1000 german cars a year
    2. indirect discrim = same treatmeent in law but different in treatment
    3. and then you can have non discrim measure- measures that apply eqaully in law- inf act can be breach for e.g sunday trading laws - if fly geremany e.g shoppinn on sunday u cant sunday trading law prohib- if nto open on sunday u sell less goods and could be restriction of free movemet of goods

cts said in b and q case

38
Q

What is non discrim

A

non discrim = controversial compared to discrim and indsicrim

people say free movment of goods should not cover this category - sundaw laws e.g

39
Q

If produce ak47

A

if you produce ak47 in germany u cannotexport to uk and uk cannot import - what kind of breach is it? - DIRECT DISCRIM against german goods

e.g through all - ak47 yes is a good
ak47 yes cross border element want to get in uk
is there restriction yes theres direct discrim

NEXT Q - CAN THAT BREACH BE JUSTIFIED

40
Q

What is meant by exception and justification

A

(3) Exception/justification

Can the breach of the fundamental freedom be justified?

The TREATY allows the Member States certain exceptions to free movement (exhaustive):
See art. 36 TFEU, e.g. public health (Commission v. Germany), public policy (Scientology), public security (Campus Oil), public morality (Omega)

The COURT has allowed certain other justifications in limited circumstances (non-exhaustive):
E.g. consumer protection (Mars), social/cultural traditions (Torfaen CBC)

41
Q

Can a breach be justified

A

can breach be justified - no. 3 exception or justification

q to ask

e.g for ak47 - The TREATY allows the Member States certain exceptions to free movement (exhaustive):
See art. 36 TFEU, e.g. would be exception of public sec

42
Q

Court have created what

A

court have created EXHAUSTIVE EXCEPTIONS (JUSTIFICATIONS UNDER TREAT)

AND NON EXHAUSTIVE EXCEPTIONS (COURT ALLOWED OTHER LIMITED JUSTIFICATIONS) - ryans topic he will teach - this is also where distincirtion direct and indirect discrimination or non discrim

  • direct - you can only justify based on TREATY TEST ART 36

indirect and non discrim - you can also use justification courts cam up with

43
Q

1 of reasons

A

1 of reasons why ms do not like fundamental freedom/free movement of goods because

u have SCOPE AND BREACH ON EU SIDE (EU INTEREST)

and u have EXCEPTION/justification on MS SIDE

44
Q

Now the wider you interpret what

A

now the wider you interpret scope and restriction on eu side e.g also say cjeu covers non discrim memebrs like sunday laws the further down see saw comes - and lower you do- the less weight for eu side

FREEMOVEMENT OF GOODS TILTED TOWARD EU - and from eu perspective makes sense bc we want free trade in eu- without borders or restrictions = EU PERSPECTIVE

45
Q

what is the next part after structure?

A

Free movement of goods - overview

Part III: Customs Union

WONT BE EXAMINED ON CUSTOM UNION SO JSUT BREIFLY UNDERSTAND

46
Q

Free movement of goods

A

Free movement of goods split into 2 thing;

the customs union -Prohibition of tariff (fiscal) barriers to trade

  1. Prohibition of quantitative restrictions between MS
    (art. 34-37 TFEU)- Prohibition of non-tariff (non-fiscal) barriers to trade - e.g ban on ak47 bc quantity reduced to 0- restriction on QUANTITY
47
Q

Overview - free trade

A

Overview - Free trade as envisaged by the TFEU: To prohibit, as between MS,

  • Customs duties (duties on imports or exports);
  • Charges having an equivalent effect (equivalent to customs duties);
  • Quantitative restrictions (quotas or bans on imports or exports); and (UNLESS JUSTFIED)
    4. Measures having an equivalent effect to quantitative restrictions. - unless justified, KEY BIT FOR EXAM
48
Q

E.g Donald trump

A

e.g donald jump e.g - tax on their cars= custom union

49
Q

Now quiz ?

A
  1. internal market and freemovement of goods in eu - based on ideas of free trade and economic integration = true
  2. postive integreation means that eu elimainates national laws that create barriers to trade = false, what is correct word = NEGATIVE
  3. a national law that that restricts free movement of goods must be disapplied = not true can be justified - inocrrect word is always cos u can justify some things
  4. scotland bans the import of english whisky, does the scottish law restrict the eus free movement of goods? - i red card bc clearly bans whisky but whats missing ITS NOT CROSS BORDER - e.g germany stufy in scotland 0 because u cannot discriminate other ms states - intneral discrim eu says none of burisness what u do to own people dont care but u cannot discrim other national ms
    e. g if scotland to uk - doesnt matter 9k. - EU DONT CARE ABOUT THIS COS NOT CROSS BORDER
  5. all english flags in ireland have to be labelled following - this law discrim agaisnt irelands good - ireland ship to england and therefore have to be - yes it does direct discrim against irish goods- even tho english flag the good is produced in ireland and u have to label it foreign - DIRECT DISCRIM - is this also a quantivie restriciton = no u can produce as many as u want - but what is the intended effect of label. = measure equiv to quantiative restriction and treaty tells u its prohibited
50
Q

What about cross border

A

Cross border element crucial in exam - if its not there = eu law not involved in this specific case

51
Q

Part IV: Prohibition of quantitative restrictions -PART 5?

A

Part IV: Prohibition of quantitative restrictions

Scope of art. 34 TFEU
Breach/restriction of art. 34 TFEU – What is a MEQR?
Dassonville-formula
Product requirements
Selling arrangements
Product use cases

REALLY RELEVANT FOR EXAM

52
Q

Part IV: Prohibition of quantitative restrictions- graph?

A

INTERNAL MARKET ART 26 TO FREE MOVEMENT OF GOODS AND THEN Prohibition of quantitative restrictions between MS
(art. 34-37 TFEU)

IS ONE OF 2 UNDER FREE MOVEMENT

53
Q

Legal framework

A

The legal framework
Article 34 TFEU: “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”

Article 35 TFEU: “(same for exports)” - NOT EXAMINE

Article 36 TFEU: “The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports or exports … justified on grounds of public morality, public policy or public security; the protection of health and life of humans, ….”
Three aspects: Quantitative restrictions (QRs), Measures having equivalent effect to quantitative restrictions (MEQRs) and justifications

54
Q

Legal framework 2

A

legal framework - art 34 tfeu - : “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”

SAME FOR EXPORTS BUT NOT EXAMINED

ART 36- exceptions ryan will teach

55
Q

-so what do we take home articles

A

so what take home from these articles

  1. quantitative restrictions -
  2. measures having equivalent effect of these restrictions
  3. justifications
56
Q

What are qrs and meqrs

A

QRs and MEQRs = barriers to cross-border trade.

They are in principle prohibited, unless a MS can provide a justification (art. 36 TFEU + CJEU case law).

57
Q

What about national measure

A

A national measure that…

  • falls within the scope of art. 34 TFEU (good (+), cross-border element (+)) and
  • breaches art. 34 TFEU (= it is a QR or MEQR)

so in exam art 34 need to show me its a good and cross border element

and that breaches art 34 - either QR OR MEQR?

…is prima facie in breach of the Treaty. However, this breach may be justified.
-IS BREACH JUSTIFED OR NOT

58
Q

Scope of art 34

A

Scope of art. 34 TFEU
(a) Does the case involve a “good”?
No definition in text of Treaty

In short: any product of commercial value (= wide definition)

Examples of goods (CJEU):

- works of art (Case 7/78, Thompson)
- electricity (Case C-379/98, PreussenElektra), - waste (Case C-2/90, Walloon Waste)
59
Q

So what is good art

A

SO WHAT IS A GOOD - ART 34

no def in treaty- cjeu saying ‘any product of commerical value’-Case 7/68, Commission v Italy = WIDE DEFINTIION

60
Q

e.g of exception?

A

e.g lets assume toy safety organisation, and all toys improted in uk must be complaint with standards of that org, and then u have uk law that says same thing- says omething very equiv to national law cos have to be complaint - only case wehre private measure can fall under art 34 eu

APART FROM THAT HAS TO BE MS MEASURE

61
Q

what are ms measures?

A

Scope of art. 34 TFEU
(c) What are “Member State measures”?

Wide understanding: “Member State” includes
all authorities of a country,
all law-making, judicial and administrative bodies,
bodies established under public law as public bodies

Private company, but government controlled and financed (+) (Case 249/81, Commission v Ireland (Buy Irish))

62
Q

Need to be cross border

A

B)NEEDS TO BE CROSS BORDER ELEMENT NEXT

63
Q

And you need to what

A

C) AND YOU NEED TO ACT OR MEASURE THAT FALLS WITHIN SCOPE OF ART 34 TFEU

  • most of times this is acc uncontroversial but want to speak to you about exceptions
  • part c not as controversial in exam= if private party only responsible for measure eu does not care
64
Q

-e.g of this

A

e.g tesco decides to stop selling french chicken - may breach other eu but not fr- for fr you need to have national measures - theres 1 exception

1 exception-

65
Q

What’s an exception

A

exception

Exception: art. 34 TFEU is applicable to standardisation and certification activities of private law body, where the national legislation considers the products certified by that body to be compliant with national law (Case C-171/11, Fra.bo)

66
Q

what else can be a state measure?

A

Scope of art. 34 TFEU
(c) What are “Member State measures”?

May even include state inaction

-cts went even further
even state inaction can be state measure

67
Q

what is case of inaction?

A

-Case C-265/95, Commission v France: France was held responsible for actions of national farmers seeking to restrict the import of agricultural goods from Spain by intercepting lorries transporting these goods and by destroying their loads  French government failed to stop the protests

measure of burning done by private parties- but gov didnt do anything which is cjeu said cant do this u knew odf situation and u didnt stop farmers from festroying spanish goods above

68
Q

distiniguish with another case of inaction

A

-Distinguish Case C-112/00, Schmidberger - protest - gov tried to stop thats why cts said on acts of this case there is NO NATIONAL MEASURE

69
Q

Part IV: Prohibition of quantitative restrictions - distiniguish with another case of inaction

A

-Distinguish Case C-112/00, Schmidberger - protest - gov tried to stop thats why cts said on acts of this case there is NO NATIONAL MEASURE

70
Q

Scope of art 34

A

Scope of art. 34 TFEU

  • The wider the scope of art. 34 TFEU, the more negative integration = the more MS laws that hinder inter-MS trade in the EU can be removed
  • state inaction or private company under national measures - wider u interp art 34 = more negative integreation you have - u can get rid of more international laws and that cant be surprise bc we have cjeu interpring eu law based on udnerling ideas of economic intergration of free trade- ideas this is one internal market we shouldnt have any restrictions whatsoever
71
Q

Part IV: Prohibition of quantitative restrictions - distiniguish with another case of inaction

A

-Distinguish Case C-112/00, Schmidberger - protest - gov tried to stop thats why cts said on acts of this case there is NO NATIONAL MEASURE

72
Q

so what was all that?

A

it was scope of art 34 - there is handout for this - usally scope easy - but pick up points in breach

73
Q

now what do we look at under Part IV: Prohibition of quantitative restrictions ?

A
  1. Breach/restriction of art. 34 TFEU
74
Q
  1. Breach/restriction of art. 34 TFEU - what is a qr?
A
  1. Breach/restriction of art. 34 TFEU

Is the national measure a QR or MEQR?

Quantitative restriction (QR) - what is this- said in case below

-Case 2/73, Geddo: “measures which amount to a total or partial restraint of…imports, exports or goods in transit”

75
Q

examples of QR

A

Examples: Quotas restricting the import by either quantity or value; total/partial bans (Case 37/79, Henn and Darby);

QRs are relatively rare. The Member States are much “smarter” when trying to restrict free movement of goods

ak 47 ban = QR

quota= germany only allowed export 10,,00 cars in uk

76
Q

Breach restriction

A
  1. Breach/restriction of art. 34 TFEU

Is the national measure a QR or MEQR? - MOST RELEVANT AND CONTROVERSIAL - MOST REL FOR PROBLEM AND ESSAY QS

Measure having equivalent effect to a quantitative restriction (MEQR)

Most relevant and most controversial area in practice and for problem and essay questions (!!)

#

77
Q

E.g legal requirement

A

E.g. a legal requirement that imported goods must be repacked on premises within the MS = MEQR (Case 124/81, Commission v UK (UHT Milk) [21-22])

BC arg. causes delays and expenses for the importer; clearly has negative effect on cross-border trade of UHT milk = negative effect on trade - WHAT KIND OF BREACH OR RESTRICTION IS THIS - DIRECT /INDIRECT/NON DISCRIM = DIRECT

CLEARLY DISCRIM FROM IMPORTED GOODS MUST BE REPACKED, DOMESTIC GOODS DONT - CLEARLY A PROTECTIONIST MEASURE THAT IS PROHIB UNDER EU LAW

78
Q

Structure for them so far?

A

THIS IS GONNA BE PROBLEM Q

  1. SCOPE - GOOD/CROSS BORDER ELEMENT/MS MEASURE
  2. BREACH/RESTRICTION- qr- IF U HAVE THAT ONLY BE JUSTIFED ON ART 6 TFEU /MEQR??
  3. EXCEPTION/JUSTIFCAITON
79
Q

SO TODAY

A
  • WE SPOKE ABOUT ECONOMIC INT AND DIFFERENT STEPS
  • LOOKED AT INTERNAL MARKET AND PURPOSE OF INTENRAL MARKET IS AND HOW IT WORKS

KEY PART - SCOPE BREACH JUSTIFICATION

FOR ESSAY QS - REMEMEBER FREE MOVEMENT SEE SAW

80
Q

SO IF THIS FREE MOVEMENT IS ESSAY OR PROB?

A

IF FREE MOVEMENT ESSAY KNOW ALL THIS - PLUS THE SEE SAW

IF PROB -JUST LEARN STRUCTURE

SO IN ALL LEARN STRUCTURE + SEE SAW

EULAW1 (11 decks)

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