Free movement of goods

Question 1

Where can the provision of measures having equivalent effect be found?

Answer 1

-Art. 34 TFEU

Question 2

How does one determine whether Art. 34 TFEU is applicable to a case.

Answer 2

a)Is the case about goods?
b) Is there applicable harmonisation at EU level? If yes, then apply the harmonisation legislation. If not:
c)Is there a cross-border element in the case?
d) Is the personal scope of Art. 34 TFEU fulfilled?

Question 3

How does one determine whether the material scope of Art. 34 is fulfilled?

Answer 3

e) Does the measure constitute a “quantitative restriction” or a “measure having equivalent effect”?

Question 4

How does one determine whether a justification is valid here?

Answer 4

f) Can the Member State invoke a ground of justification in Art. 36 TFEU or a “mandatory requirement”?
g) is the measure proportionate?

Question 5

How does one determine what “goods” are?

Answer 5

• can be sold, subject of commercial transactions
• Tangible, physical
  -EXCEPT: waste, electricity, human corpses,etc.

Question 6

How does one determine what a measure having equivalent effect is?

Answer 6

• Case law!
  -Dassonville
  
  • C5:
    -Trading rules
    -capable of hindireing (direct + indirect) TRADE within union

Question 7

Are product requirements measures having equivalent effect?

Answer 7

Yes!
-but they can be justified
-e.g: through mandatory requirements
-e.g: necessity
-discussed by Cassis de Dijon, but argument not accepted by the court

Question 8

What is the principle which opposes restrictions of trade based on differing national product requirements?

Answer 8

• principle of mutual recognition ( Cassis de Dijon)

Question 9

How is the de minimis principle a consequence of Dassonville and Cassis de Dijon?

Answer 9

• ALL restric. 2 trade which are capable of hindering trade are MEEs
  -no minimum level of severity

Question 10

What is the case law which relates to whether all measures refulating the flow of goods is an MEE?

Answer 10

• Krantz

Question 11

Are all measures which regulate flow of goods MEEs?

Answer 11

No, because effect on flow of goods not always sure (Krantz)

Question 12

What does Art. 110 TFEU do?

Answer 12

-Bans any internal taxation (e.g: VAT) which is applied to a member states’ products to products of another member state

Question 13

Are custom duties allowed in the EU?

Answer 13

• NO (Art.30 TFEU)

Question 14

Where can the provision on custom duties be found?

Answer 14

-Art. 30 TFEU

Question 15

Main provisions on free movements of goods

Answer 15

-Art 30 TFEU
-Art 110 TFEU
-Art 34 TFEU
-Art 36 TFEU

Question 16

What does the statistical levy case principle encapsulate?

Answer 16

• de minimis principle
  -no minimum for severity, or exception for measures having equivalent effect
  -all banned (especially, including customs duties)

Question 17

What was the judgment in Humblot?

Answer 17

-Indirect discrimination for giving less tax to cars with lower house power
-likely to discourage movement of goods/ COMPETITION

Question 18

What was the judgement in Outokompu?

Answer 18

-No direct discrimination on electricity biatch

Question 19

What are selling arrangements?

Answer 19

• Rules about the ways in which products are sold
  -opening hours for shops
  -rules regarding marketing

Question 20

Explain the Keck exception?

Answer 20

• restrictions to selling arrangements ( the ways products are sold)
  -are not inherently MEEs
  
  • if they don’t discriminate against foreign products in law or in fact
    -don’t necessarily hinder foreign products ACCESS to the market any more than access of domestic products

Question 21

What is the difference between product requirements and selling arrangements?

Answer 21

Product requirements–> standards to be met by the goods itself
Selling arrangements–> how that good was sold

(Clarified in Familiapress)

Question 22

Where can the justifications for a restriction on the free movements of goods be found?

Answer 22

-Art. 36 TFEU
- Mandatory requirements (from case law)

Question 23

Give examples of grounds of justification

Answer 23

Conegate
Public health –> Cassis de Dijon; Gourmet international (products were allegedly subpar)
Consumer protection
Road safety–> italian trailers
Fundamental rights