Free movement of goods Flashcards
Definition of quantitative restrictions
Geddo:
“Measures which amount to a total or partial restraint of imports, exports or goods in transit”
= quotas (partial) and bans (total)
Geddo
Defines quantitative restrictions:
“Measures which amount to a total or partial restraint of imports, exports or goods in transit”
= quotas and bans
Definition of MEQRs
Dassonville:
“All trading rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”
Dassonville
Definition of MEQRs:
“All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”
Distinctly applicable measures
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
Indistinctly applicable measures
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
Customs union’s aspects
1) internal: free trade area where customs duties and other trade restrictions between MSs are prohibited
2) external: common customs tariff
Common customs tariff
A common level of duty charged by all MSs on goods imported from third countries
Internal market
An area without internal frontiers in which the free movement of goods, persons, services and capital are ensured (Art 26 TFEU)
Difference between tariff barriers and non-tariff barriers
Non-tariff barriers do not involve direct payments of money
Examples of distinctly applicable MEQRs
San Jose Scale
Dassonville
Commission v Ireland (Buy Irish Campaign)
Commission v Germany (Quality Label)
Examples of indistinctly applicable MEQRs
Walter Rau
Commission v UK (Origin Marking of Goods)
Obligation to ensure the free movement of goods
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
Commission v France (Farmers’ Protest)
Obligation to ensure the free movement of goods
Art 4 TEU: MSs must take all appropriate measures to fulfill Treaty obligations
Principle of mutual recognition
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
Application of mutual recognition
Prantl:
National legislation may not prevent wine imports by reserving the use of a particular shape of bottle to its own national products
Prantl
Application of mutual recognition:
Bocksbeutel bottles
Definition of the single market
- removal of all obstacles to trade between MSs
- common policy towards 3rd countries
- free movement of goods, persons, services and capital (=the four freedoms)
Advantages of free movement of goods
- transparent pricing
- more consumer choice
- better quality
- more potential consumers for businesses
- mutual recognition; harmonised standards
Disadvantages of free movement of goods
- danger: too much competition
- monopolies may dominate
- economies may shrink
- ability to regulate?
Definition of ‘goods’
Commission v Italy (Italian Art):
Anything that is capable of monetary valuation, and can be used for commercial transactions
Article 26 TFEU
Aims for a single market on the basis of the 4 freedoms
Article that aims for a single market on the basis of the 4 freedoms
Article 26 TFEU
Article 34 TFEU
QR and MEQRs shall be prohibited between MSs
Article 36 TFEU
Justifications for Art 34 and 35
Art 28(1) TFEU
Common customs tariff
Conditions for Article 36
- There must be a genuine concern
- measure must be proportionate
Justification of distinctly applicable measures
Only Article 36
Justification of indistinctly applicable measures
- Article 36
- mandatory requirements from the Cassis de Dijon
Commission v Ireland (Restrictions on Importation of Souvenirs)
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
Henn and Darby
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!
Public morality cases
Henn and Darby (DA) - justified
Conegate (DA) - not justified
Conegate
Life size inflatable dolls into the UK from Germany
Law had been liberalised slightly since Henn and Darby
-> import restriction was no longer equivalent
Conditions of Cassis rule of reason
1) Only in the absence of EU rules governing the interest concerned AND
2) only to indistinctly applicable measures
Commission v Denmark (Danish Bottles)
Extends ‘Cassis rule of reason’ mandatory requirements to include protection of environment
Torfaen
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
Cases regarding proportionality
Cassis de Dijon
Walter Rau
Commission v Germany (Beer Purity Laws)
LABELLING!!!
Commission v Ireland (Restrictions on Importation of Souvenirs)
Art 36 justification list is EXHAUSTIVE
Example of arbitrary discrimination and disguised restriction on trade
Commission v UK (Imports of Poultry Meat)
Commission v UK (Imports of Poultry Meat)
Example of arbitrary discrimination and disguised restriction on trade
Example of justification on the grounds of public security (Art 36)
Campus Oil
“Fundamental to the provision of essential services”
Campus Oil
Example of justification on the grounds of public security (Art 36)
“Fundamental to the provision of essential services”
San Jose Scale
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
DocMorris
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.
Sandoz
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
Advantages of FMG
- economic efficiency
- larger markets for goods and services
- economies of scale
- higher profits
- lower prices
Criticism towards FMG
- 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?
All aspects how Cassis de Dijon impacted EU law
- 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
Commission v France (Ad Ban of Grain Spirits)
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
Public health defence is rejected as it is a disguised discrimination
Commission v France (Ad Ban of Grain Spirits)
Commission v Ireland (Buy Irish)
“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
Familiapress
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
HELD: promotion is on the goods themselves
-> fall within Art 34
Familiapress
De Agostini
Sweden bans advertising targeted at children
-> Keck exception does not apply where the restriction is actually discriminatory
Keck exception does not apply where the restriction is actually discriminatory
De Agostini
Article 36 cultural protection examples
Cinetheque: justified
Torfaen: justified
Article 36 public morality examples
Henn and Derby: justified
Conegate: not justified (no equivalent measures)
Article 36 consumer protection examples
Commission v Germany (Beer Purity Laws): not justified
Commission v France (Powdered Milk): not justified
Article 36 public health examples
Commission v Germany (Beer Purity Laws): not justified
Sandoz: justified
Commission v France (Powdered Milk): not justified
Commission v France (Red Bull): justified
Art 36 protection of public security example
Campus Oil
Commission v France (Powdered Milk)
- 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
Just because something’s bad for you, doesn’t mean it’s damaging to public health
Commission v France (Powdered Milk)
Commission v France (Red Bull)
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
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
Commission v France (Red Bull)
Static vs dynamic selling arrangements
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
Lasa’s arguments as to why labelling is inadequate
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
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
Lasa
Weatherill and Beaumont
“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”
“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”
Weatherill and Beaumont
