Free Movement of Goods

Question 1

What does Art 34 protect? What does it prohibit?

Answer 1

Protects free movement of goods. Prohibits QRs and MEQRs.

Question 2

What is a ‘good’ for the purposes of Art 34? Case.

Answer 2

Anything capable of forming the basis of a commercial transaction - Commission v Italy (Art Treasures).

Question 3

How is a ‘quantitative restriction’ defined for the purposes of Art 34? Case.

Answer 3

A ban or quota - Geddo.

Question 4

How is a ‘measure equivalent to a quantitative restriction’ defined for the purposes of Art 34? Case.

Answer 4

Anything which actually or potentially, directly or indirectly hinders intra-Community trade - Dassonville.

Question 5

Following Keck, what type of measure will NOT be caught by Art 34? What criteria must be met?

Answer 5

Selling arrangements, provided they apply to all traders and apply equally to domestic and imported goods.

Question 6

Give 6 examples of MEQRs. Cases.

Answer 6

1. Administrative burdens on imports, e.g. licenses - UHT Milk. 2. Re-packaging the product - UHT Milk. 3. Marking the origin of the product - Origin Marking. 4. Failing to stop anti-import protest - Angry Farmers. 5. Changing the packaging - Mars. 6. Changing product name - Clinique.

Question 7

Give 3 examples of a presumption of a selling arrangement. Cases.

Answer 7

1. Shop opening hours - Capena. 2. Where/what type of shop the product can be sold - Commission v Greece. 3. Advertising restrictions, e.g. ban on all fuel advertisements - Leclerc.

Question 8

Give an example of where the presumption of a selling arrangement was rebutted. Case.

Answer 8

Gourmet International - ban on alcoholic drinks advertising prevented foreign product from entering the market.

Question 9

Define ‘distinctly applicable’ and ‘indistinctly applicable’.

Answer 9

Distinctly - applies only to imported goods.

Indistinctly - applies to all goods, irrespective of origin.

Question 10

How can distinctly applicable measures be justified?

Answer 10

Only by using the Art 36 TFEU derogations.

Question 11

For the Art 36 derogation of ‘public morality’, how will a Member State’s moral code be ascertained? Case.

Answer 11

By considering what is legal in that Member State - in Conegate, a ban on sex dolls was not justified as they were legally sold in the UK.

Question 12

For the Art 36 derogation of ‘public policy’, may a Member State protect another interest at the expense of free movement of goods? Case.

Answer 12

Yes, provided it restricts free movement to the least extent possible - Schmidberger.

Question 13

For the Art 36 derogation of ‘public security’ to apply, what must the measure NOT be? Case.

Answer 13

It must not be a purely economic reason - Campus Oil. Here supply of petrol was deemed exceptionally important because it is a vital source of energy, not just as an economic resource.

Question 14

For the Art 36 derogation of ‘public health’ to apply, what is required? Case.

Answer 14

Medical evidence of the risk to public health - UHT Milk.

Question 15

How can indistinctly applicable measures be justified?

Answer 15

Either with Art 36 TFEU derogations, or by applying the Cassis approach.

Question 16

What is the second principle in Cassis?

Answer 16

The principle of mutual recognition - that goods lawfully produced and marketed in one Member State should be allowed to be marketed in other Member States.

Question 17

How can the second Cassis principle be rebutted? (i.e. what is the first principle).

Answer 17

With a rule of reason - i.e. by showing that a measure is necessary to fulfill a mandatory requirement of the state.

Question 18

What 4 mandatory requirements were identified in Cassis?

Answer 18

1. Fiscal supervision.
2. Public health.
3. Fairness of commercial transactions.
4. Consumer protection.

Question 19

Is the list of mandatory requirements in Cassis exhaustive? Give 2 more examples. Cases.

Answer 19

No.

1. Protection of culture - Cinétheque.
2. Protection of environment - Commission v Denmark.

Question 20

What else must both distinctly and indistinctly applicable measures be? 3 criteria. Case.

Answer 20

Proportionate - Walter Rau.

1. Pursue a legitimate aim.
2. Be necessary to achieve that aim.
3. Do no more than is necessary to achieve that aim.

Question 21

What is the consequence of a Harmonisation Directive on the free movement of goods?

Answer 21

Any goods meeting the harmonised standards must be allowed to be imported.

Question 22

What derogations from a Harmonisation Directive are allowed?

Answer 22

Art 114(4) - pre-existing national law may be justifed using Art 36 derogations, and protection of environment/working environment.
Art 114(5) - later national law can only be justified on protection of environment/working environment.