Free Movement of Goods Flashcards
Definition of Goods (Commission v Italy [Art treasures] )
“products which can be valued in money and which are capable of forming the subject of commercial transactions”
Treaty article prohibiting QRs and MEQRs
Article 34 TFEU
Definition of QRs (Geddo v Ente Nazionale)
“measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit”
Explain the Dassonville Formula
Defines MEQRS; “All trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade”
What is a distinctly applicable measure?
Direct discrimination against imported products (different burden in law and different burden in fact)
Can distinctly applicable measures ever be justified?
Yes, but only under the Article 36 treaty derogations
What is an indistinctly applicable measure?
Indirect discrimination on the ground of origin of the products; indirect discrimination against imported products (same burden in fact- genuinely non discriminatory measures)
Can indistinctly applicable measures ever be justified?
Yes, both under Article 36 treaty derogations and the mandatory requirements
Explain what happened in Cassis de Dijon
German law that required in order for drinks to be sold in Germany, need to have a minimum 25% alcohol content, was decided that this was an indistinctly applicable measure (MEQR) as was a product requirement and French firm would have to change their product to comply with it
What two legal principles were established in Cassis de Dijon
Mutual recognition: Products that have been lawfully produced & marketed in one member state should not be legal to legal prohibition in another
Rule of Reason/ Mandatory requirements:
When a member state has good non economic reason to place restrictions on the production and marketing of goods. Such mandatory requirements include
- the effectiveness of fiscal supervision
- protection of public health
- fairness of commercial transactions
- defence of the consumer
Explain what happened in Keck
Tried to sell Picon liquor at a lower price than the retail price (predatory pricing). Was banned by France as argued that this would discourage importers who would be unable to compete. Was decided that a prohibition on selling below retail price was not an MEQR.
What legal principles were established in Keck?
Selling arrangements are allowed as long as
a) the provisions apply to all affected traders operating within the national territory
b) provided that they affect in the same manner in law and in fact the marketing of domestic products and those from other member states
equal burden- does not prevent access to market or to impede access any more than it impedes the access of domestic products
Which case referred to the ban on advertising to children on TV in Sweden and what was the result?
De Agosti (1997) Result: had a greater impact on products from other member states as there were no other advertising methods for reaching children so was an MEQR
Which case referred to the ban on advertising alcohol in Sweden and what was the result ?
Gourmet (2001)
Applied to all affected traders in the national territory but affected foreign imports more as domestic products were more familiar and hence it would be difficult to build up brand name (MEQR)
How can you tell whether a measure (QR or MEQR) is justified?
QRs and distinctly applicable MEQRS can be justified only under Article 36 TFEU
Indistinctly applicable MEQRs may be justified under Art 36 TFEU and mandatory requirements
Must be proved that the measure is PROPORTIONATE (no other way of achieving the mandatory requirement)
