Free movement of goods Flashcards
how can the gradual integration of the various national markets into a common European market be achieved?
by two complementary mechanisms - positive and negative integration
what is negative integration?
through the Treaties themselves and CJEU decisions that interpret these treaty provisions
what is positive integration?
through EU legislations (regulations/directives etc)
What is the common market?
- the concept involves the elimination of all obstacles to intra-Community trade in order to merge national markets into a single market bringing about conditions as close as possible to those of a genuine internal market
how can the internal market be achieved?
- through the abolition of internal barrier to trade between member states
this can be achieved through the : - prohibition of tariff barriers
- prohibition of discriminatory taxation
- prohibition of non-tariff barriers
what are goods?
products which can be valued in money, and which are capable of forming the subject to commercial transactions - Commission v Italy
what are tariff barriers?
customs duties and charges having equivalent effect
what are non-tariff barriers?
bans, quantitative restrictions (quotas) and measures having equivalent effect to quotas (MEQRs/MEEs)
what are bans?
total restraint that blocks the import of particular goods altogether
what are quotas?
measures which amount to a total or partial restraint of imports
what are MEQRs (MEEs)
all trading rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade
what is discrimination?
a national rule is discriminatory (in the context of FMOG) when it treats goods ( services etc) from another MS less favourably than domestic goods
what is the effect of discriminatory rules?
they are protectionist - their effect is to protect/insulate the domestic producers from competition - this goes against the aim of the common market
what is an indistinctly applicable rule?
applies to both domestic goods and imports
A national rule may be indistinctly applicable but still hinder …
… the access of the imported good to the domestic market
what are caught by article 34?
discriminatory national rules
what does art 34 provide for?
quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member states
what is a quantitative restriction?
measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit
what did the case of Dawnsonville rule for the scope of art 34?
all trading rules enacted by Member States that are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as measures having an effect equivalent to quantitative restrictions
what was held in Cassis de dijon?
- The case shows that these indistinctly applicable rules could also breach article 34 due to their dual burden effect
- after Cassis goods are subject to one set of rules
- transforms the focus of art 34 to look at whether a measure has a restrictive effect on intra-community trade
- expands the scope to include both discriminatory and indistinctly applicable national measures
what is the principle of home state control from Cassis?
regulation is in principle to be carried out by the state of production
what is the principle of mutual regulation from cassis?
presumption that goods lawfully manufactured and marketed in the home state should be free to be marketed in the host state
allows host MS to maintain their national laws while accepting goods produced elsewhere
decline for mandatory requirements - allows for the reversal of the mutual recognition presumption, wherever the home state has failed to take into account a public interest protected in the host state
what is the double burden rationale?
if goods had to comply with different product standards in home MS and host MS, imported products would be disadvantaged (cost and time) = obstacle to intra-EU trade
what was the decision in Keck?
art 34 will not be infringed by national rules relating to certain selling arrangements that apply in the same manner, both in law and in fact, to all traders within the national territory
what is the Keck formula?
product requirements always fall under art 34 - they are double burden rules by default
selling arrangements do not fall under art 34 unless they are discriminatory in law or in fact
discriminatory restrictions are always caught because they are protectionist by default
what are product requirements?
Measures regulating some physical aspect of the good
what are selling arrangements?
measure that regulate the marketing of products
what is discrimination in law?
the selling arrangement has different provisions/rules for domestic and imported products
what is discrimination in fact?
the national measure brings about an effect whereby the domestic producers are practically in a more favourable position than the importers
what happens when there is an indistinctly applicable selling arrangement that restricts free trade? - Keck
Keck suggests that these measures are outside the scope of art 34
market access test - any measure which substantially hinders access to the market
