Free movement of goods

Question 1

how can the gradual integration of the various national markets into a common European market be achieved?

Answer 1

by two complementary mechanisms - positive and negative integration

Question 2

what is negative integration?

Answer 2

through the Treaties themselves and CJEU decisions that interpret these treaty provisions

Question 3

what is positive integration?

Answer 3

through EU legislations (regulations/directives etc)

Question 4

What is the common market?

Answer 4

• 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

Question 5

how can the internal market be achieved?

Answer 5

• 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

Question 6

what are goods?

Answer 6

products which can be valued in money, and which are capable of forming the subject to commercial transactions - Commission v Italy

Question 7

what are tariff barriers?

Answer 7

customs duties and charges having equivalent effect

Question 8

what are non-tariff barriers?

Answer 8

bans, quantitative restrictions (quotas) and measures having equivalent effect to quotas (MEQRs/MEEs)

Question 9

what are bans?

Answer 9

total restraint that blocks the import of particular goods altogether

Question 10

what are quotas?

Answer 10

measures which amount to a total or partial restraint of imports

Question 11

what are MEQRs (MEEs)

Answer 11

all trading rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade

Question 12

what is discrimination?

Answer 12

a national rule is discriminatory (in the context of FMOG) when it treats goods ( services etc) from another MS less favourably than domestic goods

Question 13

what is the effect of discriminatory rules?

Answer 13

they are protectionist - their effect is to protect/insulate the domestic producers from competition - this goes against the aim of the common market

Question 14

what is an indistinctly applicable rule?

Answer 14

applies to both domestic goods and imports

Question 15

A national rule may be indistinctly applicable but still hinder …

Answer 15

… the access of the imported good to the domestic market

Question 16

what are caught by article 34?

Answer 16

discriminatory national rules

Question 17

what does art 34 provide for?

Answer 17

quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member states

Question 18

what is a quantitative restriction?

Answer 18

measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit

Question 19

what did the case of Dawnsonville rule for the scope of art 34?

Answer 19

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

Question 20

what was held in Cassis de dijon?

Answer 20

• 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

Question 21

what is the principle of home state control from Cassis?

Answer 21

regulation is in principle to be carried out by the state of production

Question 22

what is the principle of mutual regulation from cassis?

Answer 22

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

Question 23

what is the double burden rationale?

Answer 23

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

Question 24

what was the decision in Keck?

Answer 24

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

Question 25

what is the Keck formula?

Answer 25

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

Question 26

what are product requirements?

Answer 26

Measures regulating some physical aspect of the good

Question 27

what are selling arrangements?

Answer 27

measure that regulate the marketing of products

Question 28

what is discrimination in law?

Answer 28

the selling arrangement has different provisions/rules for domestic and imported products

Question 29

what is discrimination in fact?

Answer 29

the national measure brings about an effect whereby the domestic producers are practically in a more favourable position than the importers

Question 30

what happens when there is an indistinctly applicable selling arrangement that restricts free trade? - Keck

Answer 30

Keck suggests that these measures are outside the scope of art 34

market access test - any measure which substantially hinders access to the market