Free Movement of Goods Flashcards
What does Art 34 protect? What does it prohibit?
Protects free movement of goods. Prohibits QRs and MEQRs.
What is a ‘good’ for the purposes of Art 34? Case.
Anything capable of forming the basis of a commercial transaction - Commission v Italy (Art Treasures).
How is a ‘quantitative restriction’ defined for the purposes of Art 34? Case.
A ban or quota - Geddo.
How is a ‘measure equivalent to a quantitative restriction’ defined for the purposes of Art 34? Case.
Anything which actually or potentially, directly or indirectly hinders intra-Community trade - Dassonville.
Following Keck, what type of measure will NOT be caught by Art 34? What criteria must be met?
Selling arrangements, provided they apply to all traders and apply equally to domestic and imported goods.
Give 6 examples of MEQRs. Cases.
- 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.
Give 3 examples of a presumption of a selling arrangement. Cases.
- 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.
Give an example of where the presumption of a selling arrangement was rebutted. Case.
Gourmet International - ban on alcoholic drinks advertising prevented foreign product from entering the market.
Define ‘distinctly applicable’ and ‘indistinctly applicable’.
Distinctly - applies only to imported goods.
Indistinctly - applies to all goods, irrespective of origin.
How can distinctly applicable measures be justified?
Only by using the Art 36 TFEU derogations.
For the Art 36 derogation of ‘public morality’, how will a Member State’s moral code be ascertained? Case.
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.
For the Art 36 derogation of ‘public policy’, may a Member State protect another interest at the expense of free movement of goods? Case.
Yes, provided it restricts free movement to the least extent possible - Schmidberger.
For the Art 36 derogation of ‘public security’ to apply, what must the measure NOT be? Case.
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.
For the Art 36 derogation of ‘public health’ to apply, what is required? Case.
Medical evidence of the risk to public health - UHT Milk.
How can indistinctly applicable measures be justified?
Either with Art 36 TFEU derogations, or by applying the Cassis approach.
What is the second principle in Cassis?
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.
How can the second Cassis principle be rebutted? (i.e. what is the first principle).
With a rule of reason - i.e. by showing that a measure is necessary to fulfill a mandatory requirement of the state.
What 4 mandatory requirements were identified in Cassis?
- Fiscal supervision.
- Public health.
- Fairness of commercial transactions.
- Consumer protection.
Is the list of mandatory requirements in Cassis exhaustive? Give 2 more examples. Cases.
No.
- Protection of culture - Cinétheque.
- Protection of environment - Commission v Denmark.
What else must both distinctly and indistinctly applicable measures be? 3 criteria. Case.
Proportionate - Walter Rau.
- Pursue a legitimate aim.
- Be necessary to achieve that aim.
- Do no more than is necessary to achieve that aim.
What is the consequence of a Harmonisation Directive on the free movement of goods?
Any goods meeting the harmonised standards must be allowed to be imported.
What derogations from a Harmonisation Directive are allowed?
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.
