Free Movement of Goods 2: Articles 34-36 TFEU Flashcards
R v Royal Pharmaceutical Society of GB ex parte Association of Pharmaceutical Importers
Art 34 applies to public bodies and quasi-public bodies.
Commission v Ireland (Buy Irish)
Member State cannot circumvent their obligations under Art 34 by relying on a private company.
A ‘measure’ under Art 34 is not confined to binding measures.
No need for trade to actually have been hindered for Art 34 to be invoked.
National rules giving preference to domestic goods can be MEQRs.
Commission v France (Spanish Strawberry)
A MS will be in breach of its obligations under Art 34 where it fails to take necessary and appropriate measures to prevent the free movement of goods being obstructed by private individuals.
Geddo
Defined quantitative restrictions as ‘measures which amount to a total or partial restraint … of imports, exports or goods in transit’.
R v Henn and Darby
Art 34:
A ban is a quantitative restriction on imports.
Art 36:
‘It is for each MS to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality’.
International Fruit Company NV v Produktschap voor Groenten
A quota on imports constitutes a quantitative restriction in violation of Art 34.
Dassonville
‘All trading rules enacted by Member States which 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’.
Restricting the channels through which goods can be imported can be an MEQR.
Firma Denkavit
Imposing additional requirements on imported goods can constitute an MEQR.
Commission v Ireland (Irish Souvenirs)
National rules giving preference to domestic goods can constitute MEQRs.
Cassis de Dijon
Two key principles:
1. Presumption of Mutual Recognition
Goods lawfully produced and marketed in one member state can in principle be sold in another member state without further restriction.
2. Principle of Mandatory Requirements
An indistinctly applicable MEQR can be justified where it is necessary to satisfy mandatory requirements.
For example:
- Effectiveness of fiscal supervision
- Protection of public health
- Fairness of commercial transactions
- Defence of the consumer
Note that this is not an exhaustive list.
Conegate
Derogation will not apply if the discrimination is arbitrary.
R v Thompson
Public policy derogation is construed very narrowly.
Campus Oil
Example of derogation on public security grounds.
Commission v Greece
Restrictions must be proportionate for derogation to apply.
Cullett v Centre Leclerc Toulouse
Example of failed derogation on grounds of public security.
Commission v Germany (Beer Purity)
Objective evidence must be provided for a derogation on public health grounds to apply.
Criminal Proceedings Against Sandoz BV
If the scientific evidence to the possible health risk is inconclusive, the Court of Justice may allow Member States to decide the degree of health protection required.
Commission v UK (Imports of Poultry Meat)
For a derogation to apply, the restriction must be genuine and not a disguised restriction on trade.
Criminal proceedings against Bluhme
Art 36 permits derogations for the purpose of protecting animals and plants.
PressenElektra AG v Schleswag AG
The derogation for the purpose of protecting animals and plants can be extended to wider forms of environmental protection.
Mandatory requirements are not capable of being invoked for Distinctly applicable measures.
Gilli and Andreas
Mandatory requirements can only justify indistinctly applicable MEQRs.
Walter Rau
Court will balance the mutual recognition principle against any mandatory requirements argued by MS concerned.
Commission v Italy (Relabelling of Cocoa Products)
Court will balance the mutual recognition principle against any mandatory requirements argued by MS concerned.
Cinetheque SA
Mandatory Requirements:
The list of mandatory requirements set out in Cassis de Dijon is not exhaustive.
Encouraging culture and protecting the profitability of cinematographic production are mandatory requirements.
Selling Arrangements:
This is an example of a selling arrangement being found to be an MEQR.
Commission v Denmark (Disposable Beer Cans)
Protection of the environment is a mandatory requirement.
Schmidberger v Republik Osterreich
Treaty obligations will be balanced against mandatory requirements.
Freedom of expression and assembly is a mandatory requirement.
Oosthoek
Selling arrangements can constitute MEQRs.
Torfaen Borough Council v B & Q/Stoke on Trent City Council and Norwich City Council v B&Q plc
Selling arrangements can constitute MEQRs.
Keck
Selling arrangements will not be MEQRs as long as:
- They apply to all affected traders operating within the national territory; and
- They affect in the same manner in law and in fact the marketing of domestic and imported products
Product requirements are MEQRs.
Criminal Proceedings Against Tankstation
Example of a selling arrangement falling outside Art 34.
Punto Casa
Example of a selling arrangement falling outside Art 34.
Fachverband der Buch un Medienwirtschaft v LIBRO Handelsgesellschaft
Example of a selling arrangement which fails the Keck test.
De Agostini
In principle, if restrictions on advertising result in discrimination, the arrangement would be considered an MEQR.
Gourmet International
In principle, if restrictions on advertising result in discrimination, the arrangement would be considered an MEQR.
Herbert Karner Industrie
A restriction on advertising may satisfy the Keck test and not be an MEQR.
Mars
If promotional material is included on the packaging or other content of the product any restriction on it will be a product requirement.
Familiapress
Example of a product requirement that was an MEQR that could be justified on the basis of the necessity of press diversity.
Commission v Italy (Trailers)
Commission v Italy (Trailers) MEQRs can be any measure which hinders access to the market of a Member State of product originating in another Member State.
Mickelsson and Roos
Mickelsson and Roos MEQRs can be any measure which hinders access to the market of a Member State of product originating in another Member State.
Bouhelier
Measures are distinctly applicable and thus in breach of Art 35 when they do not apply equally to exports from a MS and products sold in the MS.
Groenveld
Court of Justice is reluctant to apply Article 35 to indistinctly applicable measures. It will only apply to measures which have as their specific object or effect the restriction on the patterns of export and thereby the establishment of a difference in treatment between the domestic trade of a MS and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the state in question at the expense of the production or of the trade of other Member States.
Gysbrechts
Indistinctly applicable measures can constitute MEQRs under Article 35 when they place exported goods at a disadvantage.