FREE MOVEMENT OF GOODS 2

Question 1

Part IV.2: What is a MEQR?-

what shall we start with?

Answer 1

Let us talk about alcohol1. Whiskey2. Liqueurs3. Beer (and coffee)

Question 2

Part IV.2.a: Dassonville-formula-who do we start with?

Answer 2

Case 8/74, Dassonville

facts: Dassonville imported Scotch whisky from France into Belgium without a certificate of origin from the UK customs authorities. According to a Belgian rule, all importers, including Belgian importers, of whisky had to have a certificate of origin if they wanted to re-sell. Does this rule infringe art. 34 TFEU?
- now unfortuantely under beligum law u need certif of orgin if wanted to sell whisky- so this is non tariff barrier to trade

ct said : the requirement to have a certificate of origin is a MEQR

• reason was that france did not require that type of certificate & makes it impossible to import whisky from franmce which may be cheaper in france bc wouldnt endf up with certif - thats why court said this measure equiv to quantative restriction - thats not why case is improtant - the case is improtanc bc of take home message

Question 3

Part IV.2.a: Dassonville-formula- take home messgae:

Answer 3

Definition of MEQR: ‘All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-EU trade are to be considered as MEQRs’

Question 4

Part IV.2.a: Dassonville-formula-more from take home message

Answer 4

• Extremely wide definition of MEQR
• Crucial element of MEQR is its effect: restrictive effect on inter-state trade - CRUCIAL ELEMENT IS EFFECT ON TRADE - IF THERE IS A RESTRICTVIE EFFECT ONTRADE IT WILL BE COVERED BY DANSSON VILLE FORMAULA
• Dassonville formula does not require discrimination (either direct or indirect) between domestic and imported goods. As long as rule has a restrictive effect on inter-state trade, it breaches art. 34 TFEU.

WHICH BRINGS ME TO 1ST Q- CANNOT OPEN SHOP ON SUNDAY DOES THIS FALL UNDER WIDE DEFINITION DASSONVILLE -YES IT DOES - THATS WHY U CAN SAY ITS EXTREMELY WIDE AND DOES NOT REQUIRE DISCRIMINATION AGAINST IMPORTATED GOODS- U ONLY LOOK AT THE EFFECT ON INTESTATE TRADE AND IF U CANT SELL GOODS ON SUNDAY- WELL THAT ALSO MEANS CANT SELL MY IMPROTANTED GOODS SO I HAVE RESTRICTIVE EFFECT ON TRADE THATS THE REASONING

Question 5

Part IV.2.a: Dassonville-formula - so in all about this formula?

Answer 5

WE WILL SEE LATER TODAY CASE LAW CHANGED BC COURT REALISED IT HAD HUGE IMPACT ON WHAT MS CAN DO WITHOUT THE IMPACT OF EU LAW BUT THIS IS HOW IT ALL BEGAN VERY WIDE DEF OF … RESTRICTION

SO IF WE LOOK AT SCOPE OF ART 34 IT IS GIGANTIC

Question 6

Part IV.2.a: Dassonville-formula -what are we looking at next?

Answer 6

Product requirements
Selling arrangements
Product use cases

Question 7

Part IV.2.b: Product requirements -what we doing?

Answer 7

so lets move on from whisky to liqor

Question 8

Part IV.2.b: Product requirements- what happened in case?

Answer 8

1 of the most important eu law cases
- german company

CJEU developed its case law further in Case 120/78, Cassis de Dijon

facts: Rewe wanted to import Cassis de Dijon into Germany. German rule regulating all fruit liqueurs, setting minimum alcohol content to 25%. French Cassis de Dijon only contained 15-20% alcohol. De facto ban to sell Cassis in Germany.

Question 9

Part IV.2.b: Product requirements- more on the caase?

Answer 9

Does the German rule infringe art. 34 TFEU?

• so what should be obvious that it is aproduct req because the rule of facts, the ingreidients, teh content of the product and teh german rule was not directly discrim - why not direct discrim- bc it applied to domestic products aswell - it applied to all food liquors

and this is why case is so important

-German rule was a product requirement

German rule wasn’t directly discriminatory/ distinctly applicable

Question 10

Part IV.2.b: Product requirements- what was held in the case?

Answer 10

Rule: if a product is lawfully produced/marketed in one MS, it must also be free to circulate in all MS [14]

THE SO CALLED Principle of mutual recognition AND
This principle operates in absence of EU harmonisation (EU legislation)

• IMPORTANT - THIS IS WHAT COURT SAID IN EARLY 80’S ABOVE - SO WHAT THIS MEANS IS PRODUCED IN GERMANY MSUT BE ABLE TO MOVE TO UK FREELY EVEN THOUGH OTHER RULES IN UK

German rule setting minimum alcohol content is a MEQR
it reduces inter-state trade of lawfully produced Cassis de Dijon

Question 11

Part IV.2.b: Product requirements- EXCEPTION OF THIS?

Answer 11

Exception: mutual recognition does not apply if national rules hindering inter-state trade are necessary to satisfy mandatory requirements (= are justified) [8]

• THAT MEANS JUSTIFICATIONS CREATED BY COJ- CAN SEE IN OUR CASE OKAY PRODUCT IN PRICNIPLE MAY BE ABLE TO MOVE FREELY INTO UK BUT UK MAY BE ABLE TO JUSTIFY IT BASED ON MAD REQ - FOR E.G PUBLIC HEALTH REASONS

Question 12

Part IV.2.b: Product requirements- SO THE ?

Answer 12

SO THE
German rule setting minimum alcohol content is a MEQR
it reduces inter-state trade of lawfully produced Cassis de Dijon

• COS DJON PRODUCED 25% CANNOT GO INTO GEERMANY = WUALITATATIVE RESTRICTION

Question 13

Part IV.2.b: Product requirements- TAKE HOME MESSAGE OF Case 120/78, Cassis de Dijon

Answer 13

1.Principle of mutual recognition

AND

2.Mandatory requirements as possible justifications for “indistinctly applicable” measures
AS POSSIBLE JUSTIFICATIONS FOR INDISTINCLY - APPLIC MEASURES

Question 14

Part IV.2.b: Product requirements - so what to we have?

Answer 14

SO WE HAVE Trade restrictions arise simply because national rules are different, even if the national rule applies equally to both imports and domestic goods.

-If national rule is a product requirement, this creates a dual burden (differential impact) for imported products
even though no discrimination in law, discrimination in fact MEANS IT DOES NOT DISCRIMATE IN LAW BUT DISCRIMINATES IN FACTS

= indirect discrimination (“indistinctly applicable” measure)

= MEQR

Question 15

Part IV.2.b: Product requirements - why do u have dual burden on imported products?

Answer 15

LOGICAL STEP CT WENT THROUGH BUT WHY DOES PRDUCT REQ CREATE A DUAL BURDEN? - WHY DO WE HAVE THIS - IF WE TAKE FOR EXAMPLE GERMAN LAW ALCOHOL 25% WHERE FOES DUAL BURDEN COME FROM THATS WHY INDSCRIM NATION - FOOD LIQUOR COSTS U 10 - LETS ASSUME U PRODUCE GERMAN LIQOUR - NOW WHAT HAPPENS UNDER GERMAN LAW UR NOT ALLOWED TO SELL IN GEMRNAY COS NOT ENOUGH ALCOHOL SO U HAVE TO INCREASE LEVEL - CHANGE PRODUCT AND THAT INCREASEES COST - WHICH IS WHY DUAL BURDEN COS U HAVE TO PRDUCE PRODUCT TWICE IN ORDER TO SELL COMPARED TO DOMESTIC PRODUCTS

bc under german law cant simply sewll them u have to change them thats where INDIRECT DISCRIM COME FROM
and this works with all product requirements -

Question 16

Part IV.2.b: Product requirements - what is real intention of german law? why do tehy have that?

Answer 16

its protectionism- protecting german food liquor market to require certain standards 0 which brings me to hand out

Question 17

Part IV.2.b: Product requirements - look at handout?

Answer 17

at bottom - can only be justifed= catgeory of justifcaition - top bit = breach and u can see it differnitaires btw qrs- meqrs and certain selling arrangmenets - under meqrs u have distincitvely applicable measures in other words- DIRECTLY DISCRIM MEASURES

you have in middle INDISTINCITELY APPLICABLE - WHICH CONCERN PRODUCT REQ - THAT MEANS INDRECT DISCRIM - WHEN U AHVE PRODUCT OF REQ U HAVE INDIRECT DISCRIM

Question 18

Part IV.2.b: Product requirements - what is the german view?

Answer 18

NOW USALLY i would continue with next but for this case speak about jsutification bc feel compelled to give native german experience

so why 25% - this protexts public health bc weake drinks are more liable to induce tolerance to alchol= 1st arg

2nd argument- the mimum acholcol rule protects german consumers bc when buy entitelt to atelast 25%

Question 19

Part IV.2.b: Product requirements - EFFECT OF CASSE DE DIJON?

Answer 19

MOST IMPORTANT EU CASES BC OF PRINCIPLE OF - MUTUAL RECOGNITION AND THIS CASE HAS A HEAVY DE REGULATORY EFFECT - BC MS CAN NO LONGER APPLY PRODUCTS-

Effect of Cassis de Dijon ruling: de-regulatory
MS loose regulatory competence because they can no longer apply all national rules to imported goods

Product requirements = prima facie breach of art. 34 TFEU = PROHIBITED UNLESS JUSTIFIED
= presumption in favour of free trade

BUT POINT IS B.O.P IS ON MS IN THIS SCENARIO AND U THINK ABOUT PRINCIPLE OF MUTUAL RECOG IT ALSO

Due to mutual recognition principle, it makes sense to produce a good in a MS where production standards and costs are lowest (race to the bottom-argument)

BC IF U CAN PRODUCE CASS DIJON - SOMEWHERE ELSE FOR 7 PRINCIPLE OF RECOG CCAN GO INTO GERMANY AND CAN COMPETE U CAN SEE HOW IT WOULD IMPACT GERMAN MARKET

Question 20

Part IV.2.b: Product requirements - what is the solution to this problem?

Answer 20

Solution: EU harmonisation setting a level playing field = positive integration - so called race to bottom argument - is wheteht eu can harm - lkooked at last week and di in law making

so this is cassedijohn

Question 21

Part IV.2.b: Product requirements - overview on slide?

Answer 21

Overview post-Cassis de Dijon
But have a look at the handout: this is not the final picture!
if hw indirect discrim e.g product requirement burdern improted justified based on trwty provision if indirect u can jsutiy based on art36 and madtory requirement look on slide?
look at slide

WHAT WE DOING NOW- LOOK AT FEW EXAMPLES OF DIRECTLY DISCRIM PRODCUT REQUIREMENTS AND INDIRECT

Question 22

Part IV.2.b: Product requirements - Part IV.2.b: Product requirements - what about direct dicrim product req?

Answer 22

Distinctly applicable measures (≈ direct discrimination)

Where a “foreign” good is treated differently to a “domestic” good (differential treatment in fact and law)

Question 23

Part IV.2.b: Product requirements -e.g of direct discrim product requirements?

Answer 23

Examples
Origin-marking of imported goods – Case 113/80, Irish Souvenirs
Imported souvenirs had to be labelled “foreign”

compared to souvenier produced in ireld -= clear discrim

Question 24

Part IV.2.b: Product requirements -e.g of direct discrim product requirements? 2?

Answer 24

1. Import licences (Case 124/81, Comm. v. UK (UHT Milk))
   ‘Buy national’ advertising campaigns – Case 249/81, Commission v Ireland (Buy Irish) - if u wanted to sell import good in uk - need important licence- dont need any licence to sell domestic products- treated diff simply cos imported - BUY IRISH CASE - orgnaised funded and run by gov - made ad campaign pease only buy these pridicuts - ct said clear case of direct even tho not a product req

Campaign “is designed to achieve the substitution of domestic products for imported products”;
NOT a product requirement, but direct discrimination

Question 25

-Part IV.2.b: Product requirements - INDISTICTLY APPLICABLE?

Answer 25

Indistinctly applicable measure (≈ indirect discrimination)

Measures that, whilst formally “neutral” have a greater impact on imported products (differential treatment in fact, not in law) -product requirements cos create dual burden are indriectly discrim againsmt improte prdicts for e.g packaging req

Product requirements create a dual burden for imported products = differential treatment in fact

Question 26

Part IV.2.b: Product requirements- EXAMPLES OF INDISTINTLY APPLICABLE

Answer 26

Examples

Packaging requirements – Case 261/81, Rau (repackaging of margarine)- said margin cute shaped packagin so dont confuse with butter - example where law targets product itself- e.g import margaine from netherlends into belegium u have to change apckaging - create dual burden - so compegte agaisnt belgium butter which is cheaper - AGAIN PROTECTIONIST MEASURE

Requirements as to the presentation of goods (weight, size, etc.) – Case C-416/00 Morellato
Contents and ingredients restrictions – Case 178/84, Commission v. Germany (Beer purity case); Case 120/78, Cassis de Dijon - ANYTHING THAT RELATES TO PRESO OF GOODS IS PRODUCT REQUIREMENT- ANYTHING THAT RELATES TO PRESENTAITON OF GOODS IS PRODUCT REQUIRE - BEER PURTIY CASE - ONLY 4 REQ= PRODUCT REQUIREMENT- SO THINKA BOUT THESE CASE HERE GO IN BOX

Question 27

Part IV.2.b: Product requirements - what about radicalisation - LEARN IN YOUR OWN TIME SO SKIP THOSE SLIDES

Answer 27

Radicalisation of art. 34 TFEU

After Cassis de Dijon, the Court started to develop case law that seemed to be “non-discriminatory” in nature (i.e not distinctly or indistinctly applicable). Equal burden in fact and law. This came to be known as a “market access” approach…
restrictions on the manner of sales were under attack

Question 28

what are we going to look at now?

Answer 28

Selling arrangements

Product use cases

Question 29

Part IV.2.c: Selling arrangements - what about cassis de?

Answer 29

De-regulatory effect of Cassis de Dijon + wide Dassonville formula led to: rise of litigation as traders challenged all kinds of national rules affecting trade.

• WE KNOW CASS HAD DEREG AFFECT - MUTUAL RECOG - GERMAN CIG CAN MOVE FREELY TO UK UNLES SJUSTIF - IF U THINK ABOUT FORUMAL - SO U CAN SEE WHAT AFFECT THAT HAD IN 1980S - TRADERS ALL KIND

Question 30

Part IV.2.c: Selling arrangements - BACKGROUND OF THESE CASES?

Answer 30

“In view of the increasing tendency of traders to invoke [art. 34 TFEU] as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States, the Court considers it necessary to re-examine and clarify its case-law” [14]

-CJEU responded in Joined cases C-267/91 and C-268/91, Keck - CASE THAT CONCERNED BEER OR COFFEE SO VIEW OF ICNREASING TEANCY- CHALLENGE COMMERCIAL FREEDOM WE HAVE TO RECONSDIER AND CLARIFY OUR CASE LAW

Keck qualifies Dassonville… - keck QUALIFIES THE FORMULA

Question 31

Part IV.2.c: Selling arrangements - Joined cases C-267/91 and C-268/91, Keck fact?

Answer 31

French law prohibited traders to sell goods at a price lower than their purchase price. Keck sold coffee and beer at a loss. Keck argued: French law restricts the volume of sale of imported products, MEQR (+)

THATS WHY MEQR - SO CAN SEE HERE THERE IS NO DISCRIMINATION THERES NO DIRECT OR INDIRECT - BUT UNDER FORUMALA IN WOULD BE COVERED COS AFFECTS AMMOUNT OF GGODS
‘’’’’????

Question 32

Part IV.2.c: Selling arrangements - what did court say?

Answer 32

CT SAID National rules restricting certain selling arrangements fall outside the scope of art. 34 TFEU, provided that those rules are non-discriminatory (i.e. they apply to all relevant traders operating within the national territory, and affect in the same manner, in law and in fact, the marketing of domestic products and those from other MS) [16]

HERE U HAVE DISCRIM GOODS

Question 33

Part IV.2.c: Selling arrangements - what about distinction between products and selling arrgaments?

Answer 33

Distinction between “product requirements” and “selling arrangements”

PRODUCT REQ A RE BY NATURE INDIRECT DISCRIM THEY CREQT DUO BURDEN WHEREAS NON DISCRIM SELLING ARRANGEMENT FALLS OUTSIDE SCOP E DASSONVILLE FORMULA DONT NEED TO JUSTIFY

Non-discriminatory selling arrangements fall outside the scope of the Dassonville-formula and outside the scope of art. 34 TFEU (they don’t have to be justified)

Question 34

Part IV.2.c: Selling arrangements - selling arrangements are caught by?

Answer 34

Selling arrangements are caught by art. 34 TFEU only when they are directly or indirectly discriminatory

Question 35

Part IV.2.c: Selling arrangements - what abput keck

Answer 35

Keck inserts a discrimination rationale into art. 34 TFEU [this doesn’t work well with Dassonville]-

Absent discrimination, selling arrangements are equal burden-rules (equal impact for domestic and imported products)

THIS IS SOMETHING NEW BC SELLING ARRANGEMENT COVERED BY ART 34 IF THEY ARE SOMEWHOE DSICRIM THAT WAS NOT THERE IN DASSONVILLE AND IF U DONT HAVE DISCRIM U HAVE SO CALLED EQUAL BURDEN RULES AND THAT IS VERY TECHINCAL AND COMPLEX AND GETS EASIER IF WE LOOK AT SITUATION POST KECK AND DISTINCTION BTW PRODUCT REQNAD SELLING ARRANGE

Question 36

Part IV.2.c: Selling arrangements - Post-Keck what are product requirments?

Answer 36

MEQRs, either directly or indirectly discriminatory = within the scope of art. 34 TFEU

E.g. rules relating to designation, form (Rau), size, weight, composition (Cassis de Dijon), presentation, labelling (Irish Souvenirs), packaging of a product

Question 37

Part IV.2.c: Selling arrangements - what are selling arranmgments?

Answer 37

NO MEQRs = outside the scope of art. 34 TFEU, unless they are directly or indirectly discriminatory against imported products

THE CJ NEVER DEFINES SELLING ARRANGMENT BUT RELATES TO

Rules relating to the way a product can be sold: where, when, how or by whom a product is sold

SO TYPICAL PROB QUESTION ART 34

Question 38

ACTIVITY SLIDE?

Answer 38

Product requirement or selling arrangements?

Infant milk can only be sold in pharmacies (Commission v Greece)- THAT LAW IS FINE OUTSIDFE SCOPE ART 34

You are not allowed to open your shop on a Sunday - SELLING ARRANGMENT COS REGULATES WHEN U CAN SELL PRODUCT - AFTER KECK THIS OUTSIDE SCOPE

Law prohibiting pharmacies for advertising their goods outside their shops (Case C-292/92, Hünermund)- SELLING ARRAGNEMTN - EVEVRYTHING ADVERTISING = SELLING ARRANGMENT

National measure provides that any producer or importer is required to organise the disposal of all of their packaging waste (Case C-159/00, Sapod Audic) - SELLING ARRANGMENT - ONYL REUGLATES ASTE = NOTHING TO DO WITH SELLING BUT THIS HOW WIDE

Question 39

Part IV.2.c: Selling arrangements -what do we continue with

Answer 39

Selling arrangements – two complex issues post-Keck

• continue post teck

Question 40

Part IV.2.c: Selling arrangements- what is no.1 complex issue?

Answer 40

Division between product requirements and selling arrangements - not gonna go over first

Question 41

Part IV.2.c: Selling arrangements- what is 2nd complex issue?

Answer 41

Indirectly discriminatory selling arrangements (indistinctly applicable selling arrangements) - 2ND SELLING ARRAGMENTS THAT ACTUALLY HAVE DIFF IMPA AND LOOK AT ADVER

• Selling arrangements with differential impact
• Case study: regulation of advertising

Question 42

HE HASNT SPOKE ABOUT THIS SLIDE BUT LOOK HE SAID EASY

Answer 42

(1) Division between PRs and selling arrangements

Case C-470/93, Mars

Question 43

HE HASNT SPOKE ABOUT THIS SLIDE BUT LOOK HE SAID EASY

Answer 43

Imported Mars bar (from France) said +10% more on it, but part of wrapper was bigger than 10%. This advertising was lawful in France, but contravened German law on unfair competition.

Question 44

HE HASNT SPOKE ABOUT THIS SLIDE BUT LOOK HE SAID EASY

Answer 44

Product requirement (+) because national rule required alteration of packaging of product [13]
MEQR (+)

Question 45

HE HASNT SPOKE ABOUT THIS SLIDE BUT LOOK HE SAID EASY

Answer 45

Case C-368/95, Familiapress

FACTS:Austrian legislation prohibited publishers from including prize competitions in their newspapers. Import of German journal that included such prize competitions.

Question 46

HE HASNT SPOKE ABOUT THIS SLIDE BUT LOOK HE SAID EASY

Answer 46

held:„even though national legislation is directed against a method of sales promotion, in this case it bears on the actual content of the products, in so far as the competitions in question form an integral part of the magazine in which they appear.“ As a result, no selling arrangement, but product requirement. MEQR (+) [11-12]
Prohibition concerned intrinsic characteristics of the product

Question 47

Part IV.2.c: Selling arrangements- (2) Indirectly discriminatory selling arrangements - CASE Case C-405/98, Gourmet?

Answer 47

Swedish law prohibits advertising of alcohol on radio, television and in periodicals. Gourmet published a magazine containing advertisements for alcohol in Sweden. Does the advertising ban breach art. 34 TFEU?

Regulation of advertising = typically selling arrangement!!

NOT WHAT HAPOPEND IN GOURMET

Question 48

Part IV.2.c: Selling arrangements- what was held in gourmet

Answer 48

HELD: Prohibition on advertising affects sales of alcohol in Sweden, including imported alcohol from other MS [14]

THEN SAID Consumption of alcohol is linked to traditional social practices and to local habits and customs. A “prohibition of all advertising directed at consumers in the form of advertisements in the press/radio/television, is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are instantly more familiar.” [21]

Selling arrangement has differential impact, MEQR (+)

THIS IS SPECIAL BC CT SAYING WE HAVE IDNRIECT DISCRIM WHERE - LAW INDIREC DSCIRIM AGAINST IMPORTED GOOD- KEY WORDS = MORE

IT APEDES ACCESS TO MORE FOR IMPORTED GOODS BC COURT SAYING IMPEDES IMPORTED ALCH MORE THAN LOCAL DOMESTIC ALCHOL WHICH PEOPLE MORE FAMILIAR

YES U CAN BAN ADVERTSIING FOR ALC BUT THAT WOULDA FFECTED IMPROT ALCH THAN DOMESTIC WHICH IS WHY LAW SAME BUT AFFECT DIFFERENT= INDIREDCT DISCRIM - WHICH WHY SELLING ARRANE,ETM EQUIV TO QUANRTIVE RESTRCTION

Question 49

LOOK AT DE AGOSTINI IN UR OWN TIME HE SKIPPED

Answer 49

Cf. Case C-34/95, de Agostini - preventing access via ban on advertising

Question 50

HE SKIPPED DOUWE

Answer 50

Cf. Case C-239/02, Douwe Egberts
Held: “an absolute prohibition of advertising the characteristics of a product is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are more familiar” [53]
Selling arrangement has differential impact, MEQR (+)

Question 51

Part IV.2.c: Selling arrangements-but what happened in karner?

Answer 51

But compare Case Karner …

Question 52

Part IV.2.c: Selling arrangements- Case C-71/02, Karner facts of karner?

Answer 52

Austrian company purchased stock of insolvent companies and sold it by auction. It advertised the auction on the internet. Austrian legislation prohibits any advertising which stated that goods on sale originated from an insolvent estate.

youd think MAYBE THIS IS MEQR IF APPLY GOURMET- IN KARNER COURT IS SAYING THIS YES WE DO HGAVE SELLING ARRANGMENT

Question 53

Part IV.2.c: Selling arrangements- critiscm of karner?

Answer 53

Criticism of the case: Where is the cross-border element?

On the facts, a purely internal scenario. CJEU did not explain further.

Question 54

Part IV.2.c: Selling arrangements - held in garner argument?

Answer 54

Selling arrangement (+). Discriminatory?
„Contrary to Gourmet, the Austrian legislation does not lay down a total prohibition on all forms of advertising in a MS for a product which is lawfully sold there” [42]
Austrian law islikely to limit the total volume of sales and, consequently, also to reduce the volume of sales of goods from other Member States, it nevertheless does not affect the marketing of products originating from other MS more than it affects the marketing of products from the Member State in question. [42]
No differential impact. No MEQR. Outside scope of art. 34 TFEU.

YES WE DO HGAVE SELLING ARRANGMENT - IS IT DISCRIM - NO ITS NOT - IN GORUMET WE HAD TOTAL PROHIB ON ALL FORMS OF ADV - IN KARNER ONLY HAV RESTRICTION ON CERTAIN KIND OF ADVERTISING - THIS DOES NOT AFFECT MARKETING OF PRODUCT ORIGINIGN FROM MARKIN PRODUCT ORGINATING FROM MORE THAN MARKINT GPRODUCES FROM MS IN QUESTION - MORE IS KEY WORD - MORE OUTSIDE SCOPE OF ART 34

Question 55

Part IV.2.d: Product use cases-what are we looking at now ?

Answer 55

Product use cases

starting point - if we look at national laws we have - look at new slides

Question 56

Part IV.2.d: Product use cases-what about product use cases?

Answer 56

IF WE LOOK NATIONAL LAWS WE HAVE - NATIONAL LAWS GOVERNING SELLING ARRANG- PRODUCT REQ - SO WE MAY HAVE LAWS AFFECTIVE THINGS 3RD CATEGROY- SO CALLED RESIDUAL RULES- CLEAR IS IF THAT LAW WHATEVRE IT IS - DISCRIMIANTES - ALWAYS BEEN ART 34 ALWAYS BE A BREACH NO MATTER WHAT

What about measures that are neither selling arrangements nor product requirements?

• “Third” category of cases (“residual rules”)
• If they directly or indirectly discriminate against imported goods: MEQR (+)

What if they apply equally in law and in fact? - THE CJEU APPLIES

Question 57

Part IV.2.d: Product use cases- What if they apply equally in law and in fact?

Answer 57

CJEU applies “market access” test.

BASED ON -Market access test = non-discrimination approach.

-MEQR (+), if national measure considerably restricts access of imported good to the national marketCJEU applies “market access” test.

Market access test = non-discrimination approach.
MEQR (+), if national measure considerably restricts access of imported good to the national market

UNDER THIS TEST POSSIBILITY OF NON DISCRIM MATTERS

Question 58

Part IV.2.d: Product use cases- Case C-142/05, Mickelsson FACTS:

Answer 58

In Sweden: No restrictions on sale of speedboats, but prohibition to use them on waters other than designated waterways. De facto: merely marginal possibilities for use of speedboats in Sweden.
Rule restricts use of a product

R.A.W- SO HAVE RESTRICTION ON USE OF PRODUCT

Question 59

Part IV.2.d: Product use cases- what was held here?

Answer 59

HELD :Restriction on use of a product may, depending on its scope, have a “considerable influence on the behaviour of consumers, which may, in turn,” hinder access of that product to the market of that Member State” [26]
“Consumers, knowing that the use permitted by such regulations is very limited, have only a limited interest in buying that product” [27]

IS THERE DESCRIM ON IMPORTED SPEED BOATS- NO THERE IS NOT - LAW APPLIES EQUALLY - THINK MAYBE OUTSIDE SCOPE - HOWEVER MARKET ACCES TEST- IF AS CONSUMER - WHERE IMPACTED ON IMPROTED PRODUCT COMES FROM - E.G SWEDEN CAN HARDLY USE SPEED BOATS AND STILL COURT SAID - DOES THE MEASURE INFLUENCE

Question 60

Part IV.2.d: Product use cases- TAKE HOME FROM MILEKKSON

Answer 60

„Test“ for product use cases: Does the measure influence the behaviour of consumers considerably, so that market access of the product is hindered.

If (+), MEQR. Prohibited, unless justified.
Case-by-case approach

court said does measure etc - IF THIS IS CASE THEN U HAVE MEASURE EQUIV TO QUAL R - PROHB R.A.W

• RESIDUAL RULS WHEN SUSBTAINTALLY IN ACCESS TO MARKET - TEST IS THEY SUSBTANTIALLY HINDER EXES TO MARKET/ OR HERE WORDS OF JSUTICE CONSIDERABLY

Question 61

Part IV.2.d: Product use cases- what was said after?

Answer 61

Considerable influence (+), if Swedish regulations have the effect of preventing or greatly restricting the use of speedboats [28]

ITS ABOUT THE
-Magnitude of impact seems to be decisive for market access

ANOTHER E.g. National measure that considerably reduces sales could be MEQR under this text

AND IN MIKELL COURT SAID WE HAVE CONSIDERABLE INFLUECNE

Question 62

-Part IV.2.d: Product use cases- same treatement in law?

Answer 62

In Mickelsson, same treatment in law and in fact for Swedish and foreign speedboats
Market access test goes beyond non-discrimination

-ANOTHER E.G IF U CAN ONLY OPEN SELL ON MONDAY BY LAW THAT MASSIVELY REEUCES U SALES AND SALE IMPORTANT GOODS- UNDER ACCESS TEST WOULD BE MEQR HW THERE IS SELLINGARRANGMENT- SO HWERE END UP WITH SCENARIO IMPOTANT FOR ESSAY Q COS CASE LAW DOESNT MAKE SENSE- DOESNT MAKE SENSE WHY COURT LOOKS AT MANGITUDE OF SALES AND IF COSNDIERBLE IN ART 34 AND FOR SELLING ANRRANGEMTNS IT DOESNT MATTER IT DOESNT DISCRIM

Question 63

Part IV.2.d: Product use cases- WHAT IS RELEVANT FOR ESSAY QUESTIONS?

Answer 63

Reach of art 34 TFEU: non-discriminatory breaches

Meaning of restriction in art. 34 TFEU? Should art. 34 cover non-discriminatory breaches = wide meaning?

MEQRS - KNOW IF LOOK PRDUCT USE = NO DISCRIM - MEQR BUT SHOULD ART 34 COVER THESE CASES

Question 64

Part IV.2.d: Product use cases- WHAT DID AG JACOBS SAY?

Answer 64

AG Jacobs: Yes

1. Art. 34 catches considerable obstacles to inter-state trade, even if no discrimination in law/fact
2. Art. 34 = tool for de-regulation and facilitation of free trade

CRITCISMS

1. P: market access test remains vague (what is “considerable”?) - WHAT DOES COSNID MEAN?
2. P: great inroad into national regulatory autonomy- BACK TO PRE KECK SCENARIO - BC IF IN SCOPE ART 34 MS HAS TO JUSTIFY B.OP ON MS

Question 65

Part IV.2.d: Product use cases- -non discrim arg?

Answer 65

Reach of art 34 TFEU: non-discriminatory breaches -

[contd.]
Some academics: No, art. 34 TFEU is about non-discrimination - ONLY ABOUT 1 LEADS US TO DISCUSS
Treating cross-border and purely internal situations alike

What is the view of the CJEU in this debate?
Unclear - PERFECT FOR ESSAY Q IN THIS AREA

Keck: pro view that art 34 TFEU is about discrimination
Product use-cases: pro view that art. 34 is about facilitating market access even if discrimination is absent
[Lianos] Newer CJEU case law leans towards market access

SO HAVE DISCRIM ELEMENT BUT DONT HAVE IT ANY LOCKER DONT KNWO WEHRE CT IS STANDING ATM

Question 66

Part IV.2.d: Product use cases- LOOK BACK AT?

Answer 66

The free movement see saw revisited
The wider the definition of a MEQR (restriction), the more negative integration = the more MS laws that hinder inter-MS trade in the EU can be removed

MORE ON EU CLEARER IN FAVOUR IN EU INBALACNED

Question 67

GO BACK TO PROB QS

Answer 67

Are the following statements True or False?

The UK prohibits the import of pornographic magazines from France? This breaches art. 34 TFEU.

Tesco promotes buying only British products (advertising campaign). This breaches art. 34 TFEU.

All bicycles sold in the UK must have a bicycle bell by law. French bicycles without a bell, lawfully produced in France, cannot be sold in the UK. The UK law breaches art. 34 TFEU.

Under UK law, beer can only be advertised on television and on radio after 8PM. This breaches art. 34 TFEU.

Question 68

Part V: Summary - 1st?

Answer 68

OTHER SUMMARIES BEFORE THIS JUST LOOK

Scope
Good, cross-border element, Member State measure

Breach/restriction

What is a MEQR?
Development of the goods case law from Dassonville (wide Dassonville-formula) over Cassis de Dijon (product requirements) and Keck (selling arrangements) to product use cases (market access test)
Distinguish between product requirements, selling arrangements and other measures (residual rules)

Distinguish between direct discrimination (in law), indirect discrimination (in fact, differential impact) and non-discriminatory measures (same treatment in law and in fact)

Question 69

Part V: Summary- breach/rerstrction?

Answer 69

Breach/restriction

For essay questions
remember the “see saw”
Theme: Should art. 34 TFEU cover non-discriminatory measures?

Question 70

Part V: Summary-case list?

Answer 70

Case list

• Case 8/74, Dassonville
• Case 120/78, Cassis de Dijon
• Joined cases C-267/91 and C-268/91, Keck
• Case C-142/05, Mickelsson

Scope
Case C-171/11, Fra.bo
Commission v Ireland (Buy Irish)
Case C-265/95, Commission v France
Case C-112/00, Schmidberger

Question 71

Part V: Summary-case list?

Answer 71

Case list
Breach/restriction

Case 37/79, Henn and Darby
Case 124/81, Commission v UK (UHT Milk)
Case 113/80, Irish Souvenirs
Case 261/81, Rau
Case 178/84, Commission v. Germany (Beer purity case)
Case C-470/93, Mars
Case C-368/95, Familiapress
Case C-405/98, Gourmet
Case C-71/02, Karner
Case C-110/05, Commission v Italy (Towing Trailers)

Question 72

Part V: Summary-Learning objective?

Answer 72

Understand the concept of the internal market
Explain and apply the Dassonville judgment
Explain the difference between distinctly and indistinctly applicable measures
Critically assess the development of the goods case law from Dassonville over Cassis de Dijon to Keck
Critically discuss the post-Keck case law, including the product use cases