Free movement of goods Flashcards
Definition of a good
A product which can be valued in mone and is capable of forming the subject of commercial transactions
Conditions for free movement of goods to apply
- The goods must cross a border
- Goods must be in free circulation (Art 29 TFEU)
What does Article 34 TFEU prohibit?
Quantitative restrictions on imports and all measures with equivalent effect between Member States.
What does Article 35 TFEU prohibit?
Quantitative restrictions on exports and all measures with equivalent effect between Member States.
What exceptions does Article 36 TFEU provide?
Justifications for restrictions based on public morality, policy, security, health, national treasures, or industrial/commercial property, provided they are not arbitrary or disguised restrictions.
What is a quantitative restriction?
Non-tariff quotas limiting the quantity of goods imported or exported.
measures which amount to total or partial restraint of imports, esports or goods in transit
What constitutes measures having equivalent effect to quantitative restrictions?
Trading rules that directly or indirectly, actually or potentially, hinder intra-community trade (as established in Dassonville).
What was the rule affirmed in Henn v Derby?
- As the sex toys were not banned in the UK, but their import was banned, it was not justified and a quantitative restriction under Art. 34 TFEU and had to be disapplied
What did the ECJ decide in Dassonville?
All trading rules hindering intra-community trade are considered measures having equivalent effect to quantitative restrictions, regardless of intent.
Brief summary of the facts of Dassonville
Belgian rules requiring a certificate of origin for Scotch whisky hindered trade, leading the ECJ to define such rules as measures equivalent to quantitative restrictions under Article 34 TFEU.
What principle was established in Cassis de Dijon?
Principle of mutual recognition. Goods lawfully marketed in one Member State should be marketable in all others unless justified by mandatory requirements (e.g., public health).
What test was introduced in Keck for selling arrangements?
Selling arrangements must apply equally in law and fact to domestic and foreign traders.
What are the steps to analyze a trade restriction under Articles 34-36 TFEU?
- Determine if the measure falls under Dassonville/Cassis.
- Check for a breach of Article 34.
- Assess if justified by Article 36 or mandatory requirements.
What was established in Commission v Ireland (Buy Irish)?
- The government campaign promoting Irish products to encourage domestic purchasing violated Art 34. TFEU as it was seen as a MEE and discriminated against imported goods, despite not being explicitly protectionist
Distinctly v indistinctly applicable measures?
Distinctly: explicitly discriminates between domestic and imported goods (e.g. supplementary inspections on imports)
Indistinctly: Rules applying equally but creating barriers to imports (Cassis de Dijon)
Check! Was the restriction “enacted by member states”?
Large notion of the state:
- Central government (Dassonville)
- Quasi-governmental body (Buy Irish)
Vertical direct effect only on Art. 34
Brief summary of the facts of the case in Cassis de Dijon
In Cassis de Dijon, Germany’s alcohol content requirement for imports breached Article 34 TFEU, leading to the principle that goods lawfully sold in one Member State should be marketable in all.
What Principle is established in KECK?
Selling arrangements that have these characteristics will not violate 34 TFEU
apply to all traders on a territory
Measure affects in the same manner in law and in fact, the domestic traders and importers
Case of “Trailers”
- Ban the use of a product…is it discriminatory, directly or indirectly?
- Measure applied without regard to origin of trailers but these weren’t produced in Italy - so it only affected imported goods
- Measure declared as a MEE by court
What is the definition of Selling arrangement
How a product is sold -> like method including retail, through internet
Advertising also included
Changing the packaging of the product does not constitute as selling arrangement (Clinique)
What is the principle of proportionality?
- Is the measure too intrusive
- Is the measure the least obstructive way of achieving the stated goal?
What did De Agostini Establish
ECJ Assumes that there is presumption of neutrality when dealing with selling arrangements and it is up to commercial operator to show that national measures prevent their market access to the respective states.
It is likely that selling arrangements like advertising will affect foreign traders more as it is harder for them to reach the domestic public and the domestic producers are more known to local consumers, hence has more advantages -> this makes KECK not work in practice
What is the test for proportionality?
- Suitability - does it fit the purpose?
- Necessity - is there a less restrictive alternative?
- Market regulation tool (labelling)
- Hypocrisy buster (Connegate - immoral to import porn to the UK but it’s produced here as well??)
Suitability: Deutsche Parkinson
- Germany introduced a law setting fixed prices for medicines, arguing it was necessary to protect public health
- ECJ ruled this wasn’t suitable to address high medicine prices as competition could lower the prices and benefit public health
Necessity: Scotch Whisky Association
- Minimum price for alcohol fixed to restrict market access and increase public health
- Suitable to increase public health = yes! for both heavy drinkers and the whole population
- Not necessary, if taxation was increased economic operators would adjust
