Free Movement of Goods Flashcards
Which provisions form the bedrock of the internal market?
Art 18- Prohibits discrimination on the basis of nationality
Art 26- The union shall secure the functioning of an internal market
What is the structure to follow when dealing with a free movement problem question?
Restriction, Justification and Proportionality
How is the internal market to be secured?
There must be no quantitive restrictions on trade
What is an MEQR and how does case law define this?
Measures having equivalent effect to a quantitative restriction
Dassonville: a rule capable of hindering intra-community trade
How does the treaty deal with MEQRs?
Art 34- There can be no quantitive restrictions or MEQRs on imports
Art 35- Same rule to exports
Art 56- Same rule in relation to providing services
What is the difference between distinctly and indistinctly applicable measures?
Distinctly- Rule is different for different people, inequality with law
Indistinctly- Same law for everyone but ultimately harder for some to comply with, creates inequality in fact
What was the ruling in Cassis de Dijon?
-[where there is not a matter or justification] there is no valid reason why products made lawfully in one member state should not be introduced in any other member state
-Principle of mutual recognition
What did the case of Keck say about the scope of MEQRs?
-Selling arrangements are not typically an MEQR where they apply to all traders and affect them in the same way
When will the rule in Keck not apply?
KO v Gourmet International Products- outright advertising ban not valid since it will affect importers more than domestic sellers
Douwe Egberts- Selling arrangements must not prevent access to the market of products from another member state
What cases show that product use may be an MEQR?
-Commission v Italy: rules that lay down requirements to be met by goods
-Aklagaren: Restrictions on the use of a product may have a considerable influence on the behaviour of consumers which may affect access of that product
What are the two different routes a member state may use to justify a restriction?
Art 36- public morality, public policy or public security;
the protection of health and life of humans, animals or plants; the protection of national treasures
They should not be constitute a means of arbitrary discrimination or be a disguised restriction
Cassis Mandatory Requirements- list is open ended, can include similar factors
What is the difference between article 36 and mandatory requirements?
-Mandatory requirements only apply to indiscriminatory measures (indistinctly applicable)
-Starting point should always be Art 36
How do we determine whether a justification is proportionate?
Is the rule capable of achieving the measure, i.e. is it adequate?
Does it go beyond what is necessary to do in the circumstances?
What was said in the case of Commission v Germany?
Restrictions on the marketing of ‘bier’ not justified on the grounds of consumer protection, member states must not crystallise given consumer habits so as to give the domestic product an advantage
What are some other justifications that have been given for restrictions on goods?
Eyssen- Prohibition of adding a preservative justified on ground of public health
Commission v Belgium- Not allowing dumping of waste from another member state justified on grounds of environmental protection
Bluhme- Restriction on bee keeping justified on grounds of protection of life of animals
What cases show the link between free movement and fundamental rights?
Mary Carpenter- Deportation of a homemaker spouse would be a barrier to the freedom to provide services
Schmidberger- Exercise of the fundamental right to protest was justified, proportionate as it was lawful and not too invasive
Omega Spielhallen- Restriction on providing lager tag justified by the right to human dignity
How does the case law demonstrate an economic bias in relation to free movement and fundamental rights?
Viking Line- Right to strike could be subject to restrictions, it was up to the national court to determine whether the strike was proportionate
Laval- Blockade by Swedish labour unions was not justified, no margin for the national court
What are the main cases to use on exports?
Groenveld- measure must provide some specific disadvantage for exports in comparison with domestic goods
Gysbrechts- A national measure that applies without distinction can be an MEQR where it makes export sales more difficult, either by direct discrimination or as a matter of fact
