Free Movement of Goods

Question 0

Dassonville

Answer 0

Interpretation of MEQRs is broad - sowed the seeds for Cassis, which means that the MEQR doesn’t even have to be discriminatory for Art 34 to apply

Question 1

Geddo

Answer 1

The notion of a quantitative restriction is broadly defined - something which amounts to the ‘total or partial restraint of… imports, exports or goods in transit’

Question 2

International Fruit Company
Commission v Italy
Bouhelier

Answer 2

Import/export licences are caught by Art 34 -
so too are provisions which subject imports to restrictions but not domestic goods
Also discriminatory export rules e.g. imposing quality checks on watches for export but not domestic watches

Question 3

Commission v Ireland

Answer 3

Where a state engages in a campaign to promote domestic goods over imported goods this will be held as contrary to Art 34 e.g. ‘Buy Irish’ - even though the campaign failed they were still held accountable

Question 4

Commission v France

Answer 4

Administrative practices can also be a barrier to trade

Question 5

LIBRO

Answer 5

A state cannot be less favourable to imported goods through price-fixing regulations

Question 6

Schloh

Answer 6

Measures which make imports more difficult or costly are contrary to Art 34

Question 7

Apples and Pears Development Council

Commission v France

Answer 7

A private entity will be considered an emanation of the state where there are statutory obligations imposed or a measure of support or state ‘underpinning’
Even where the private body is the main culprit of restricting movement the state will still be liable - the state must act

Question 8

Cassis de Dijon

Answer 8

Built on Dassonville - if a good has been lawfully admitted in one MS then it should be admitted in another without restriction - ‘mutual recognition’ rule – also the rule of reason, which denotes that in the absence of harmonisation, reasonable measures by a state could be taken to prevent unfair trade practices

Question 9

Deserbais

Answer 9

Edam cheese requiring a higher fat content in France meant that the importer could rely on Art 34 when France prosecuted the trade name of the imported product - mandatory requirements were not satisfied

Question 10

Groenveld

Answer 10

There is not the duality of Art 34 in Art 35 - 35 only applies to discriminatory measures - here there was no discrimination as the production of horsemeat and its ban on sale was the same internally and externally

Question 11

Lodewijk

Answer 11

Art 35 will bite where the rule applies to all traders but is more burdensome on exporters than domestic traders

Question 12

Sunday Trading Cases

Cinetheque

Answer 12

Should rules which apply to all traders, and are not discriminatory, be held within Art 34 with a possible justification, or should they be outside of Art 34 altogether? Here they said it was the former and the justification was that it was proportionate

Question 13

Keck

Tankstation, approving Keck

Answer 13

Distinction between Cassis-type dual burdens and Selling arrangements - the former being within Art 34 and the latter not, provided that the latter did not treat domestic or imported goods differently

Question 14

Familiapress

Answer 14

Exception to Keck and selling arrangements - the ECJ can bring rules within the ambit of Art 34 if a selling arrangement affects selling as part of the product itself

Question 15

De Agostini

Franzen

Answer 15

Even if a national rule claims to be about selling, if it has a differential impact then it will be caught by Art 34 - if that impact, in law or fact, is different from domestic traders and importers e.g. by giving most licences to Swedish traders plus additional costs to importers

Question 16

Commission v Italy (mopeds)

Joakim Roos

Answer 16

These were both caught by Art 34 RE product use but were justified on the grounds of public safety and environmental protection

Question 17

Leclerc-Siplec

Answer 17

AG Jacobs supporting market access as the overarching principle of Art 34

Question 18

Henn and Darby

Conegate

Answer 18

Public morality defence under Art 36 if contravening Arts 34-35
In H the defence succeeded even though there was no absolute ban on possession or pornography, the trade was banned
In C the defence failed - the banned imported goods were being treated more harshly than the domestic ones

Question 19

Centre Leclerc

Answer 19

Public policy is also a separate defence under Art 36 but is not interpreted broadly - a public policy argument must be made on its own grounds and cannot be used to advance a separate argument

Question 20

Campus Oil

Answer 20

Public security defence under Art 36 - circumstances where it will succeed will be limited
NB however, that a state can also take certain measures relating to national security under Arts 346-348 TFEU

Question 21

Sandoz

Commission v Denmark

Answer 21

Public health will be scrutinised on principle and subject to proportionality
but ultimately accepts that states legitimately differ in the level of protection they offer RE public health

Question 22

Denkavit

Answer 22

Dual checks on imported goods are satisfactory but they must be necessary and proportionate

Question 23

Commission v Belgium

PreussenElektra

Answer 23

Here they allowed environmental protection to be a defence to an Art 34 breach even though it is not listed in Art 36 - NB however that they expressly stated that the measure which had been imposed was not discriminatory
AG Jacobs questioned whether the list is exhaustive

Question 24

Moormann

Answer 24

EU harmonization may make recourse to Art 36 inadmissible although in certain areas harmonization is not necessary

Question 25

Commission v Germany

Answer 25

The restrictions on advertising beer were an impediment to trade but satisfied the MR under Cassis of consumer protection

Also authority for public health MR - this was rejected as additives were used in other drinks than beer and lawful

Question 26

Familiapress

Answer 26

The list of MRs in Cassis is not exhaustive and others have been found to justify a breach of Art 34 e.g. the pluralism of the press