Free Movement of Goods 2: Articles 34-36 TFEU

Question 1

R v Royal Pharmaceutical Society of GB ex parte Association of Pharmaceutical Importers

Answer 1

Art 34 applies to public bodies and quasi-public bodies.

Question 2

Commission v Ireland (Buy Irish)

Answer 2

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.

Question 3

Commission v France (Spanish Strawberry)

Answer 3

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.

Question 4

Geddo

Answer 4

Defined quantitative restrictions as ‘measures which amount to a total or partial restraint … of imports, exports or goods in transit’.

Question 5

R v Henn and Darby

Answer 5

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’.

Question 6

International Fruit Company NV v Produktschap voor Groenten

Answer 6

A quota on imports constitutes a quantitative restriction in violation of Art 34.

Question 7

Dassonville

Answer 7

‘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.

Question 8

Firma Denkavit

Answer 8

Imposing additional requirements on imported goods can constitute an MEQR.

Question 9

Commission v Ireland (Irish Souvenirs)

Answer 9

National rules giving preference to domestic goods can constitute MEQRs.

Question 10

Cassis de Dijon

Answer 10

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.

Question 11

Conegate

Answer 11

Derogation will not apply if the discrimination is arbitrary.

Question 12

R v Thompson

Answer 12

Public policy derogation is construed very narrowly.

Question 13

Campus Oil

Answer 13

Example of derogation on public security grounds.

Question 14

Commission v Greece

Answer 14

Restrictions must be proportionate for derogation to apply.

Question 15

Cullett v Centre Leclerc Toulouse

Answer 15

Example of failed derogation on grounds of public security.

Question 16

Commission v Germany (Beer Purity)

Answer 16

Objective evidence must be provided for a derogation on public health grounds to apply.

Question 17

Criminal Proceedings Against Sandoz BV

Answer 17

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.

Question 18

Commission v UK (Imports of Poultry Meat)

Answer 18

For a derogation to apply, the restriction must be genuine and not a disguised restriction on trade.

Question 19

Criminal proceedings against Bluhme

Answer 19

Art 36 permits derogations for the purpose of protecting animals and plants.

Question 20

PressenElektra AG v Schleswag AG

Answer 20

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.

Question 21

Gilli and Andreas

Answer 21

Mandatory requirements can only justify indistinctly applicable MEQRs.

Question 22

Walter Rau

Answer 22

Court will balance the mutual recognition principle against any mandatory requirements argued by MS concerned.

Question 23

Commission v Italy (Relabelling of Cocoa Products)

Answer 23

Court will balance the mutual recognition principle against any mandatory requirements argued by MS concerned.

Question 24

Cinetheque SA

Answer 24

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.

Question 25

Commission v Denmark (Disposable Beer Cans)

Answer 25

Protection of the environment is a mandatory requirement.

Question 26

Schmidberger v Republik Osterreich

Answer 26

Treaty obligations will be balanced against mandatory requirements.
Freedom of expression and assembly is a mandatory requirement.

Question 27

Oosthoek

Answer 27

Selling arrangements can constitute MEQRs.

Question 28

Torfaen Borough Council v B & Q/Stoke on Trent City Council and Norwich City Council v B&Q plc

Answer 28

Selling arrangements can constitute MEQRs.

Question 29

Keck

Answer 29

Selling arrangements will not be MEQRs as long as:

1. They apply to all affected traders operating within the national territory; and
2. They affect in the same manner in law and in fact the marketing of domestic and imported products

Product requirements are MEQRs.

Question 30

Criminal Proceedings Against Tankstation

Answer 30

Example of a selling arrangement falling outside Art 34.

Question 31

Punto Casa

Answer 31

Example of a selling arrangement falling outside Art 34.

Question 32

Fachverband der Buch un Medienwirtschaft v LIBRO Handelsgesellschaft

Answer 32

Example of a selling arrangement which fails the Keck test.

Question 33

De Agostini

Answer 33

In principle, if restrictions on advertising result in discrimination, the arrangement would be considered an MEQR.

Question 34

Gourmet International

Answer 34

In principle, if restrictions on advertising result in discrimination, the arrangement would be considered an MEQR.

Question 35

Herbert Karner Industrie

Answer 35

A restriction on advertising may satisfy the Keck test and not be an MEQR.

Question 36

Mars

Answer 36

If promotional material is included on the packaging or other content of the product any restriction on it will be a product requirement.

Question 37

Familiapress

Answer 37

Example of a product requirement that was an MEQR that could be justified on the basis of the necessity of press diversity.

Question 38

Commission v Italy (Trailers)

Answer 38

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.

Question 39

Mickelsson and Roos

Answer 39

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.

Question 40

Bouhelier

Answer 40

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.

Question 41

Groenveld

Answer 41

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.

Question 42

Gysbrechts

Answer 42

Indistinctly applicable measures can constitute MEQRs under Article 35 when they place exported goods at a disadvantage.