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EU Law > Free movement of goods > Flashcards

Free movement of goods Flashcards

1
Q

Definition of quantitative restrictions

A

Geddo:
“Measures which amount to a total or partial restraint of imports, exports or goods in transit”
= quotas (partial) and bans (total)

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2
Q

Geddo

A

Defines quantitative restrictions:
“Measures which amount to a total or partial restraint of imports, exports or goods in transit”
= quotas and bans

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3
Q

Definition of MEQRs

A

Dassonville:
“All trading rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”

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4
Q

Dassonville

A

Definition of MEQRs:
“All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”

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5
Q

Distinctly applicable measures

A

Measures that do not apply equally to domestic and imported products - a distinction in treatment (Directive 70/50)
APPLY SOLELY TO IMPORTS
E.g. San Jose Scale

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6
Q

Indistinctly applicable measures

A

Measures that apply equally to domestic and imported products - no distinction in treatment (Directive 70/50)

APPLIES TO BOTH BUT AFFECTS IMPORTS MORE

E.g. Walter Rau

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7
Q

Customs union’s aspects

A

1) internal: free trade area where customs duties and other trade restrictions between MSs are prohibited
2) external: common customs tariff

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8
Q

Common customs tariff

A

A common level of duty charged by all MSs on goods imported from third countries

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9
Q

Internal market

A

An area without internal frontiers in which the free movement of goods, persons, services and capital are ensured (Art 26 TFEU)

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10
Q

Difference between tariff barriers and non-tariff barriers

A

Non-tariff barriers do not involve direct payments of money

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11
Q

Examples of distinctly applicable MEQRs

A

San Jose Scale
Dassonville
Commission v Ireland (Buy Irish Campaign)
Commission v Germany (Quality Label)

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12
Q

Examples of indistinctly applicable MEQRs

A

Walter Rau

Commission v UK (Origin Marking of Goods)

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13
Q

Obligation to ensure the free movement of goods

A

Commission v France (Farmers’ Protest)

Schmidberger v Austria: may be justified, as here on the grounds of the rights to freedom of expression and assembly

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14
Q

Commission v France (Farmers’ Protest)

A

Obligation to ensure the free movement of goods

Art 4 TEU: MSs must take all appropriate measures to fulfill Treaty obligations

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15
Q

Principle of mutual recognition

A

CASSIS DE DIJON

Provided that good have been lawfully produced and marketed in one Member State, there is no reason why they shouldn’t be introduced into another without another

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16
Q

Application of mutual recognition

A

Prantl:
National legislation may not prevent wine imports by reserving the use of a particular shape of bottle to its own national products

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17
Q

Prantl

A

Application of mutual recognition:

Bocksbeutel bottles

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18
Q

Definition of the single market

A
  • removal of all obstacles to trade between MSs
  • common policy towards 3rd countries
  • free movement of goods, persons, services and capital (=the four freedoms)
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19
Q

Advantages of free movement of goods

A
  • transparent pricing
  • more consumer choice
  • better quality
  • more potential consumers for businesses
  • mutual recognition; harmonised standards
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20
Q

Disadvantages of free movement of goods

A
  • danger: too much competition
  • monopolies may dominate
  • economies may shrink
  • ability to regulate?
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21
Q

Definition of ‘goods’

A

Commission v Italy (Italian Art):

Anything that is capable of monetary valuation, and can be used for commercial transactions

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22
Q

Article 26 TFEU

A

Aims for a single market on the basis of the 4 freedoms

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23
Q

Article that aims for a single market on the basis of the 4 freedoms

A

Article 26 TFEU

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24
Q

Article 34 TFEU

A

QR and MEQRs shall be prohibited between MSs

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25
Q

Article 36 TFEU

A

Justifications for Art 34 and 35

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26
Q

Art 28(1) TFEU

A

Common customs tariff

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27
Q

Conditions for Article 36

A
  • There must be a genuine concern

- measure must be proportionate

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28
Q

Justification of distinctly applicable measures

A

Only Article 36

29
Q

Justification of indistinctly applicable measures

A
  • Article 36

- mandatory requirements from the Cassis de Dijon

30
Q

Commission v Ireland (Restrictions on Importation of Souvenirs)

A

Souvenirs’ manufacturers elsewhere had to be stamped ‘foreign’. -> DISTINCTLY APPLICABLE

HELD:

1) Cassis rule of reason applies only to indistinctly applicable measures
2) Article 36 list is exhaustive

31
Q

Henn and Darby

A

it is for MSs to determine the requirements of public morality -> justified on public morality grounds

Although a different rule applies to imports as domestic distribution, the import ban is EQUIVALENT to the domestic measure!

32
Q

Public morality cases

A

Henn and Darby (DA) - justified

Conegate (DA) - not justified

33
Q

Conegate

A

Life size inflatable dolls into the UK from Germany

Law had been liberalised slightly since Henn and Darby
-> import restriction was no longer equivalent

34
Q

Conditions of Cassis rule of reason

A

1) Only in the absence of EU rules governing the interest concerned AND
2) only to indistinctly applicable measures

35
Q

Commission v Denmark (Danish Bottles)

A

Extends ‘Cassis rule of reason’ mandatory requirements to include protection of environment

36
Q

Torfaen

A

Sunday trading rules were justified on the grounds of national socio-cultural characteristics

NOTICE: if this had been ruled after Keck, would have most likely been treated as a selling arrangement, similarly to Punto Casa

37
Q

Cases regarding proportionality

A

Cassis de Dijon
Walter Rau
Commission v Germany (Beer Purity Laws)

LABELLING!!!

38
Q

Commission v Ireland (Restrictions on Importation of Souvenirs)

A

Art 36 justification list is EXHAUSTIVE

39
Q

Example of arbitrary discrimination and disguised restriction on trade

A

Commission v UK (Imports of Poultry Meat)

40
Q

Commission v UK (Imports of Poultry Meat)

A

Example of arbitrary discrimination and disguised restriction on trade

41
Q

Example of justification on the grounds of public security (Art 36)

A

Campus Oil

“Fundamental to the provision of essential services”

42
Q

Campus Oil

A

Example of justification on the grounds of public security (Art 36)
“Fundamental to the provision of essential services”

43
Q

San Jose Scale

A

1) definition of distinctly applicable measure: measure did not apply equally to imports and the domestic product
2) regarding Art 36 justification on health grounds, there must be a genuine health risk

44
Q

DocMorris

A

Facts: G banned the sale of medicines by mail order and online. (Fell outside Keck because a greater impact on imports than domestic products)

HELD: measure could be justified on health grounds in relation to prescription medicines but not in relation to non-prescription ones.

45
Q

Sandoz

A

Muesli bars with added vitamins in Netherlands

Member State has the discretion to decide the appropriate degree of public health protection while respecting the principle of proportionality

46
Q

Advantages of FMG

A
  • economic efficiency
  • larger markets for goods and services
  • economies of scale
  • higher profits
  • lower prices
47
Q

Criticism towards FMG

A
  • regulatory ‘race to the bottom’
  • not all factors as mobile as each other (capital can move far more easily than workers)
  • depresses wages?
  • causes unemployment?
  • facilitates tax avoidance?
48
Q

All aspects how Cassis de Dijon impacted EU law

A
  • extended the scope of Article 34
  • mutual recognition
  • sweeped away thousands of domestic regulations
  • regulatory race to the bottom
  • the only effective restrictions are common restrictions
  • even a measure that’s entirely non-discriminatory can still be a restriction on FMG if it has an adverse effect
49
Q

Commission v France (Ad Ban of Grain Spirits)

A

Example of disguised discrimination:

France bans advertising of grain spirits, and France doesn’t produce any grain spirits.

  • > bound to affect imports more = INDISTINCTLY APPLICABLE MEASURE
  • > public health defence is rejected as it is a disguised discrimination
50
Q

Public health defence is rejected as it is a disguised discrimination

A

Commission v France (Ad Ban of Grain Spirits)

51
Q

Commission v Ireland (Buy Irish)

A

“Regardless of their efficacy, – designed to achieve the substitution of domestic products for imported products and is liable to affect the volume of trade between member states”

1) doesn’t matter it’s not a binding measure
2) doesn’t matter it didn’t work

52
Q

Familiapress

A

Austria prohibits marketing products through prizes and competitions

  • > an edition of German magazine Laura contains a crossword with cash prizes
  • > Austria argued that restriction is on selling arrangements, hence outside Art 34

HELD: promotion is on the goods themselves
-> fall within Art 34

53
Q

HELD: promotion is on the goods themselves

-> fall within Art 34

A

Familiapress

54
Q

De Agostini

A

Sweden bans advertising targeted at children

-> Keck exception does not apply where the restriction is actually discriminatory

55
Q

Keck exception does not apply where the restriction is actually discriminatory

A

De Agostini

56
Q

Article 36 cultural protection examples

A

Cinetheque: justified
Torfaen: justified

57
Q

Article 36 public morality examples

A

Henn and Derby: justified

Conegate: not justified (no equivalent measures)

58
Q

Article 36 consumer protection examples

A

Commission v Germany (Beer Purity Laws): not justified

Commission v France (Powdered Milk): not justified

59
Q

Article 36 public health examples

A

Commission v Germany (Beer Purity Laws): not justified
Sandoz: justified
Commission v France (Powdered Milk): not justified
Commission v France (Red Bull): justified

60
Q

Art 36 protection of public security example

A

Campus Oil

61
Q

Commission v France (Powdered Milk)

A
  • Just because something’s bad for you, doesn’t mean it’s damaging to public health
  • ban on consumer protection grounds was disproportionate, as the same could be said of anything in catering (that the consumer doesn’t know they’re getting a substitute), and the desired result could be achieved by labelling
62
Q

Just because something’s bad for you, doesn’t mean it’s damaging to public health

A

Commission v France (Powdered Milk)

63
Q

Commission v France (Red Bull)

A

France bans Red Bull on public health grounds
-> produces scientific evidence, albeit inconclusive

HELD: where the scientific evidence is unclear, and a MS has produced evidence to justify a restriction, burden of proof shifts to the other party to rebut it

64
Q

where the scientific evidence is unclear, and a MS has produced evidence to justify a restriction, burden of proof shifts to the other party to rebut it

A

Commission v France (Red Bull)

65
Q

Static vs dynamic selling arrangements

A

Static: type of premises in which certain goods may be sold, or opening hours, etc
Dynamic: HOW manufacturer chooses to market this specific product

Been argued that dynamic relate closely to the definition of product itself

66
Q

Lasa’s arguments as to why labelling is inadequate

A

1) most people do not pay much attention to labels
2) unfair competitive disadvantage on the importer, if the consumer associates it with a familiar sounding domestic product
- > consumer is misled
3) “labelling jungle”
4) food standards are not harmonised -> difficult for authorities

67
Q

1) most people do not pay much attention to labels
2) unfair competitive disadvantage on the importer, if the consumer associates it with a familiar sounding domestic product
- > consumer is misled
3) “labelling jungle”
4) food standards are not harmonised -> difficult for authorities

A

Lasa

68
Q

Weatherill and Beaumont

A

“Court has introduced a legal test that tends to tip the balance away from legitimate social protection towards a deregulated (perhaps unregulated) free market economy in which standards of, inter alia, consumer protection will be depressed”

69
Q

“Court has introduced a legal test that tends to tip the balance away from legitimate social protection towards a deregulated (perhaps unregulated) free market economy in which standards of, inter alia, consumer protection will be depressed”

A

Weatherill and Beaumont

EU Law (5 decks)

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