Free movement of goods 2 - non-fiscal barriers Flashcards
What does article 34 state?
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states
What are QRs? Which case defines them?
Measures which ammount to a total or partial restraint of imports exports or goods in transit
What are MEQRs?
Measures which have the effect of barriers to trade.
What are the 2 types of MEQRS?
Distinctly applicable and indistinctly applicable
Define distinctly applicable MEQRs
Measures which do not apply equally to domestic and imported goods
Define indistinctly applicable MEQRs
Measures which do not expressly distinguish between imported and domestic products, but the effect is one of protectionism.
Which directive defines indistinct and distinct applicability?
Directive 70/50
Which case defined MEQRs, and how?
Dasson ville - all trading ules enacted by member states which are cpable of hindering directly or indirectly, actually or potentially, intra-community trade.
How can distinctly applicable MEQRs be justified?
Article 36
How can QRs be justified?
Article 36
How can indistinctly MEQRs be justified?
Article 36 and mandatory requirements
Firma Denkavit
Imported goods had to be inspected. Distinctly applicable MEQR
Buy Irish
Encouraged Irish produce over non-irish. Distinctly applicable MEQR
Irish Souvenirs
Imported Irish souvenirs had to bear the label FOREIGN. Distinctly applicable MEQR
Dassonville
Required imported products to have a certificate of origin. Distinctly applicable MEQR
Walter Rau
Belgian butter and margarine have to be different sizes. Places onerous issue on importers, therefore indistinctly applicable MEQR
Commision v Ireland (pipe size)
Ireland prescribed the pipes have to be a set size. Irish made pipes are that size. Therefore indistinctly applicable MEQR.
What are the 6 derogations included in article 36 TFEU?
- Public morality
- Public policy
- Public security
- Public health
- Protection of national treasures
- Protection of national industry/ commercial property
What is the the rule which applies to all the derogations?
Must be proportionate
What 2 cases demosntrate public morality?
Henn and Darby and Conegate
What cases demonstrate public policy?
R v Thompson - Coins
Cullett v Leclerc - Petrol
What case demonstrates public security?
Campus oil
Which cases demonstrate public health?
Commision v Germany (Beer purity) Santos (vitamins) Commision v UK (turkeys) Bluhme (bees) PreussenElektra (renewable energy)
Which case demonstrates the proportionality aspect of article 36?
C v Netherlands - Blanket ban on fortified foods.
Cassis de Dijon
Germany set minimum alcoholic content level. Cassis de Dijon too low. Indiscriminate MEQR, article 36 not applicable. Developed 2 defences; presumption of mutual recognition and mandartory requirements (rule of reason)
What does the presumption of mutual recognition state?
Where something is legally sold in one country, so therefore must be possible to sell it in another country.
What are mandatory requirements?
A set of exceptions where indiscriminately applicable MEQRs are permitted, as long as they meet these requriements which are outside article 36.
What cases demonstrate presumption of mutual recognition?
Mars
Cassis
Cocoa products
What rules are included in the mandatory requirements?
Effectiveness of fiscal supervision
Protection of public health
Fairness of commercial transactions
Defence of the consumer
Protection of cultural activities (Cinetheque)
Protection of the environment (Commission v Denmark disposable beer can)
Protection of fundamental rights (schmidberger)
What are selling arrangements?
Selling arrangements refer to who, when and where the goods are sold.
What case set the rules on selling arrangements?
Keck and Mithouard - Article 34 will only apply to product requirements, not to selling arrangements provided the selling arrangement meet these 2 requirements;
Apply to all affected traders operating in the national territory
Affect in the same manner in law and in fact the marketing of domestic and imported products.
Tankstatin (netherlands)
Dutch rules meant petrol statiosn had to close at night, but judged to be selling arrangement so not an MEQR, so article 34 does not apply.
What case showed sunday trading rules are selling arrangements?
Stoke-on-Trent v B & Q
De Agostini
Swedish ban on TV advertising to children. Not selling arrangement as discriminatory against imported goods wishing to break market, to which TV advertising necessary. Therefore article 34 applies
Gourmet international products
Swedish restrictinos on alcohol sale argued that affected imported products more. rebutted on public health derogation under article 36, up to court to decide.
herbert Karner
Austrian restriction on advertising goods for auction from insolvent companies. Seen as selling arrangement not MEQR.
What rules were set in Herbert Karner?
ADvertising is a selling arrangement not an MEQR where;
No total ban on advertisement
There was an alternative means of advertising
Access to doestic market for imports was not made more difficult
Fachverband v LIBRO
Austrian law setting minimum price for German language books. MEQR not selling arrangement as priced domestic and imported books differently
What does article 35 state?
Mirror image of article 34 but exports rather than imports
Does article 35 effect indistinctly applied MEQRs?
No, as this would create a situation where exporters would have to adhere to 2 sets of rules
What exceptions apply to article 35?
Article 36 but not Cassis
What exceptions apply to QRS?
Article 36
What exceptions apply to distinctly applied MEQRS?
Article 36
What exceptions apply to indistinctly applied MEQRs?
Article 36 and Cassis exceptions
What exceptions apply to non-discriminatory selling arrangements?
article 36 and cassis mandatory requirements
