Free movement of goods Flashcards
Central tensions
Free trade vs consumer protection through social policy and human right issues
Source of prohibition of obstacles to free movement
Art 34 TFEU: measures having equivalent effect
EXCEPTION: list in Art 36 TFEU
Part 1: Interpretation of Art 34 TFEU
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
Retrenchment phase from broad Dassonville formula - selling arrangements
Exclusion of selling arrangements (Keck) + Market access test (Gourmet)
Keck formula
“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
Effect of Keck formula
Limit scope of Art 34 TFEU by removing “selling arrangements”
Rationale of Keck formula
Combat strategic litigation
Critique of Keck fomrula
Formalistic, “selling arrangements” not specific
But principles are good (Oliver and Roth)
Response to formalism critique
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
Retrenchment phase from broad Dassonville formula - restrictions on use
Where the product can be freely sold, but cannot be used in certain circumstances as specified by the national measure
Test for when restrictions of use do come under Art 34 TFEU
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)
Criticism of restrictions on use test
Vagueness of “considerable influence” (Weatherill)
- Full circle by trying to correct Keck with restrictions on use cases because return to broadness that characterised Dassonville
Part 2: Interpretation of Art 36 TFEU
Narrow, cannot be “means of arbitrary discrimination or a disguised restriction on trade between Member States” (Dassonville)
Expansion of derogations/exceptions
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)
Conditions of mandatory requirements test
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
Principle of mutual recognition
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
Effect of mutual recognition
Replaces dual regulation of product (MS A vs MS B), with single regulation by HS B
Importing state required to respect it
When to apply Art 36 TFEU or mandatory requirements test
Distinctly applicable / directly discriminatory = Art 36 TFEU
Indistinctly applicable / indirectly discriminatory = Art 36 TFEU + mandatory requirements
e.g. consumer protection standards, restrictions on use
Implications of Cassis
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
Consequnece of expansion of derogations
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
Proportionality test of mandatory requirements test - Comm v Italy
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
Proportionality test of mandatory requirements test - Alkagaren v Mickelsson
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
Part 3: if the MS had an obligation to protect fundamental and human rights
If the measure fall under Art 34 TFEU, there is a negative obligation and positive obligation (Schmidberger)
Content of negative obligation
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)
Content of positive obligation
In omitting to follow FMG, if the public interest justification followed the principle of proportionality (AG Jacobs, Schmidberger)
Application of proportionality principle
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)
Outcome of Schmidberger
No protectionist intent by authorities
Obstruction not serious
= Proportionate
Implications of HR obligations
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
Rise of Eurodefence (use of Art 34 TFEU)
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)
