Free movement of goods

Question 1

Central tensions

Answer 1

Free trade vs consumer protection through social policy and human right issues

Question 2

Source of prohibition of obstacles to free movement

Answer 2

Art 34 TFEU: measures having equivalent effect

EXCEPTION: list in Art 36 TFEU

Question 3

Part 1: Interpretation of Art 34 TFEU

Answer 3

Broad Dassonville formula: all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions”

• Reasonable measures
• Means of proof required should not act as hindrance

Question 4

Retrenchment phase from broad Dassonville formula - selling arrangements

Answer 4

Exclusion of selling arrangements (Keck) + Market access test (Gourmet)

Question 5

Keck formula

Answer 5

“national provisions restricting or prohibiting certain selling arrangements” don’t come under Art 34 TFEU

Condition:

• provisions apply to all relevant traders operating within national territory
• affect in same manner, in law and in fact, marketing of domestic products and those from MS

Question 6

Effect of Keck formula

Answer 6

Limit scope of Art 34 TFEU by removing “selling arrangements”

Question 7

Rationale of Keck formula

Answer 7

Combat strategic litigation

Question 8

Critique of Keck fomrula

Answer 8

Formalistic, “selling arrangements” not specific

But principles are good (Oliver and Roth)

Question 9

Response to formalism critique

Answer 9

Market access test (Gourmet - alcoholic beverages consumption)

a) If certain selling arrangements do prevent access to market by products from another MS, or to impede access any more than they do for domestic goods
b) If so, any public interest justification under Art 36 TFEU

Assessment by national court

Question 10

Retrenchment phase from broad Dassonville formula - restrictions on use

Answer 10

Where the product can be freely sold, but cannot be used in certain circumstances as specified by the national measure

Question 11

Test for when restrictions of use do come under Art 34 TFEU

Answer 11

Considerable influence on behaviour of consumers, which would affect market access (Commission v Italy - trailers attached to motorbikes on public roads)

Assessment left to national courts
(Alkagaren v Mickelsson - Swedish use of jetskis in particular waterways)

Question 12

Criticism of restrictions on use test

Answer 12

Vagueness of “considerable influence” (Weatherill)
- Full circle by trying to correct Keck with restrictions on use cases because return to broadness that characterised Dassonville

Question 13

Part 2: Interpretation of Art 36 TFEU

Answer 13

Narrow, cannot be “means of arbitrary discrimination or a disguised restriction on trade between Member States” (Dassonville)

Question 14

Expansion of derogations/exceptions

Answer 14

Mandatory requirements test: Host is permitted to apply own domestic rules if and only if they carry sufficient justification in the public interest to prevail over interest in free trade and integration of markets (Cassis de Dijon)

Question 15

Conditions of mandatory requirements test

Answer 15

a) Applicable to domestic and imported products without distinction
b) Necessary to satisfy certain mandatory requirements ‘recognised’ by EU law (concept of mutual recognition)
c) PROPORTIONALITY test

Question 16

Principle of mutual recognition

Answer 16

Goods which have been lawfully marketed and produced in MS A can in principle be sold in MS B without further restriction/control, unless MS B can invoke a public interest justification in support of its rules

Question 17

Effect of mutual recognition

Answer 17

Replaces dual regulation of product (MS A vs MS B), with single regulation by HS B

Importing state required to respect it

Question 18

When to apply Art 36 TFEU or mandatory requirements test

Answer 18

Distinctly applicable / directly discriminatory = Art 36 TFEU

Indistinctly applicable / indirectly discriminatory = Art 36 TFEU + mandatory requirements
e.g. consumer protection standards, restrictions on use

Question 19

Implications of Cassis

Answer 19

a) Doctrine of mandatory requirements allows MS to plead non-economic policies not mentioned in Art 36 TFEU
b) Highlights problem of market fragmentation - different rules for different markets
c) Possible deregulatory effect where regulatory traditions in MS no longer apply

Question 20

Consequnece of expansion of derogations

Answer 20

Strategic litigation where EU law is used to affect domestic situations (Sunday Trading litigation)

• Retailers opened on Sun, against the law
• Challenged restrictions for Sun opening as against FMG law - effect of reducing overall volume of sale
• Significant sales involved products from other MS –> decrease in imports, hindrance of trade within EU

Question 21

Proportionality test of mandatory requirements test - Comm v Italy

Answer 21

a) Direct or indirect = indirect
b) Appropriate: road safety - danger on the road, braking capacity, stability of combination of trailer + motorbike
c) Necessary: must be allowed margin of appreciation, allowed possibility of attaining road safety rules that can be managed easily by authorities

Question 22

Proportionality test of mandatory requirements test - Alkagaren v Mickelsson

Answer 22

a) Direct or indirect = indirect
b) Appropriate: environmental protection
c) Necessary: must be allowed margin of appreciation, geographical circumstances of MS that can be managed easily by authorities

Question 23

Part 3: if the MS had an obligation to protect fundamental and human rights

Answer 23

If the measure fall under Art 34 TFEU, there is a negative obligation and positive obligation (Schmidberger)

Question 24

Content of negative obligation

Answer 24

State’s omission to adopt measures to deal with obstacle to EU right to FMG caused by private actors is a form of state action imputable to state if there is an obligation to act (Schmidberger)

Question 25

Content of positive obligation

Answer 25

In omitting to follow FMG, if the public interest justification followed the principle of proportionality (AG Jacobs, Schmidberger)

Question 26

Application of proportionality principle

Answer 26

Context-sensitive, emphasis on margin of discretion by MS (Omega - freedom to provide services of homicide game vs human dignity)

Protection of rights must be ensured within framework and structure and objectives of EU (Solange I)

Question 27

Outcome of Schmidberger

Answer 27

No protectionist intent by authorities
Obstruction not serious
= Proportionate

Question 28

Implications of HR obligations

Answer 28

Oliver/Roth: when considering exception to 4 freedoms, fundamental rights (ECHR) will be considered

Opposed to early case law where there will be a more relaxed approach having established the internal market

Question 29

Rise of Eurodefence (use of Art 34 TFEU)

Answer 29

Use to impose pressure to change domestic law

R (Countryside Alliance v AG) - ban on foxhunting

• Opponents of foxhunting ban
• Argued that domestic measure restricted use of horses, which affected readiness of buyers to import horses from IReland, violating Art 34 TFEU
• Similar to Sunday Trading litigation
• HL: prob outside Art 34 TFEU, and even if within scope, probably not justified (cautious)