Free Movement of Goods

Question 1

Art Treasures

Answer 1

Italian government prohibited exportation of art treasures (articles of historic, artistic, archaeological and ethnographic nature) and claimed these did not constitute goods; ECJ held they did
RAITO: Goods can be valued in money and are capable o forming the basis of commercial transactions

Question 2

Riseria Luigi Geddo v Ente Nazionale Risi

Answer 2

Case regarded lawfulness of a duty imposed by Ente on paddy rice produced in Italy buy exported to another Member State and a third country outside the EU
RATIO: Quantitative restrictions are measures which amount to a total or partial restraint of, according to circumstances, imports, exports or goods in transit

Question 3

Dassonville

Answer 3

Belgium required products such as Scotch whisky to be sold with a certificate of authenticity; trader purchased whisky in France where this was not required and made his own certificate; accused of forging certificate; argued the requirement amounts to a quantitative restriction on trade
RATIO: MEQRs are all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade.

Question 4

Buy Irish Campaign

Answer 4

Publicity campaign overseen by Irish Goods Council promoted the sale of Irish goods; Government argued it was a private company initiative; argument failed because Government had appointed members of the Council’s Management Committee and had granted it public subsidiaries
RAITO: Private companies can be in breach of Art 34 TFEU if there is sufficient state involvement.
Actual hinderance of trade is not required, MEQRs need only be capable of hindering trade
Trading rules need not be binding to amount to an Art 34 violation

Question 5

UHT Milk

Answer 5

Requirement imposed that non-UK UHT milk be re-packed in a UK dairy and required a license to be acquired; UK argued a public health exception; held that there was insufficient evidence of real risk and that the measure was disproportionate as the milk was already tested in country of origin.
RATIO: Licenses can cause delays even if just a formality and can amount to an MEQR; requirement to re-pack milk also amounts to an MEQR as it leads to an extra cost and delay.
Public health exceptions are only allowed where there is evidence of real risk, and even where there is a risk, the policy/measure must be proportionate.

Question 6

Origin Marking

Answer 6

UK law stated that certain retail goods could only be sold it they were marked with their country of origin; ECJ held that this would encourage UK consumers to buy according to national origin and that they were more likely to buy UK goods than others
RATIO: where a requirement is imposed to indicate country of origin of products and there is an indication that consumers will purchase local goods over foreign goods, this will amount to an MEQR.

Question 7

Angry Farmers

Answer 7

French Gov failed to take action against French protestors who were waging a violent campaign against imported goods (intercepting lorries, destroying their cargoes, using violence etc); Gov argued that if it had taken steps against the protests, even worse violence would have broken out; ECJ held that this failure to act was an MEQR
RATIO: Where a gov has allowed a situation to go unchecked for years and the result is that imports into the country are seriously affected, this will amount to be an MEQR despite public policy arguments which in other contexts may be valid.

Question 8

Irish Souvenirs

Answer 8

Irish law required an indication of the country of origin or the word ‘foreign’ on all imported traditionally Irish souvenirs; no requirement applied for souvenirs produced in Ireland.
RATIO: where a requirement is imposed only on imported products, this will amount to an MEQR as it targets foreign producers and compliance results in added expenses for producers and/or importers.

Question 9

Keck and Mithouard

Answer 9

Keck and Mithouard were selling food below purchase price (which was illegal);argued that French law was an MEQR as prevented sale of goods and therefore imported goods
RATIO: selling arrangements should be distinguished from MEQRs; selling arrangements (measures regulating how, when and where goods can be sold, marketed or advertised) will not be MEQRs if they affect all traders, foreign and local, in the same way both in law and in practice.

Question 10

Punto Casa v Capena

Answer 10

Case revolved around the Italian Sunday retail closing rules; ECJ held this was a selling arrangement.
RATIO: laws relating to shop opening hours and days (i.e such as Sunday trading laws) are pure selling arrangements and not MEQRs.

Question 11

Commission v Greece

Answer 11

Greek law required infant formula and follow-on formula milk to be sold only in pharmacies, except in municipalities where there were no pharmacies, in which case could be sold in other shops; tried to argue that since processed milk for infants was produced in Greece the measure in reality only affected imported products; commission argument failed
RATIO: Laws regarding where products can be sold are selling arrangements

Question 12

Hunermund

Answer 12

Pharmacists’ professional body prohibited from advertised quasi-pharmaceutical products outside their shops; held to affect both domestic products and imports in the same manner as there was no issue related to origin
RATIO: A ban on where products can be sold merely restricts the circumstances of sale and is therefore a selling arrangement.

Question 13

Leclerc-Siplec

Answer 13

Pharmacists’ professional body prohibited from advertised quasi-pharmaceutical products outside their shops; held to affect both domestic products and imports in the same manner as there was no issue related to origin
RATIO: A ban on where products can be sold merely restricts the circumstances of sale and is therefore a selling arrangement.

Question 14

Mars

Answer 14

Germany argued that the band marked +10% on Mars occupied more than 10% of the surface volume and deceived consumers into thinking the bars’ new volume and weight were increased to a greater extent than they actually were; held to amount to an MEQR
RATIO: Laws relation to the goods themselves (presentation labelling and packaging) will never be a selling arrangements; these will be an MEQRs as they usually constitute a waste of time and money

Question 15

Clinique

Answer 15

Clinque’s brand name was banned in Germany on grounds that customers should not be deceived regarding its medical propertied; asked to change their name to Linique; held to constitute an MEQR
RATIO: Laws relating to the goods themselves (presentation, labelling and packaging) will never be selling arrangements; these will be an MEQRs as they usually constitute a waste of time and money and may decrease brand recognition.

Question 16

Gourmet International

Answer 16

Swedish law prevented advertising of alcohol in magazines; Ombudsman issued injunction to prevent advertising by Gourmet international; strong evidence that Swedish consumers were unlikely to buy new imported alcohol without advertising; held that ban was an MEQR
RATIO: Where there is evidence that what seems to be a selling arrangement results, in practice, in foreign producers being disadvantaged compared to local producers, the measure will be an MEQR.

Question 17

Schutzverbrand gegen unlautern Wettbewerb

Answer 17

Law imposed that shows selling products through vans have a local base; appeared to be a selling arrangement given it stipulated where and how the goods could be sold, however Austrian mobile shows were more likely to have a local Austrian base than foreign mobil shops; held that it was an MEQR
RATIO: where there is evidence that what seems to be a selling arrangement results in practice in foreign sellers being disadvantaged compared to local sellers, the measure will be an MEQR

Question 18

R v Henn and Darby

Answer 18

Concerned the import of pornographic and obscene films into the UK; ECJ agreed that the law was justified on the basis of public morality as there was no lawful trade of these articles in the UK
RATIO: Each state can set its own standards of morality; an exception on the grounds of public morality is more likely to succeed where the imports in question are not lawfully traded in the country; in this case, it is acceptable for a state to restrict their import as well.

Question 19

Conegate Ltd

Answer 19

Concerned sale of blow-up dolls; ECJ held that the UK could not rely on the public morality exception because the items sold were of a type that could legally be produced and sold within the UK
RATIO: where the items in question are already legally sold and produced in the country, the state cannot ban their importation on the grounds of public morality.

Question 20

R v Thompson

Answer 20

Concerned ban on the export of gold and silver collectors’ coins imposed by the UK; UK concerned that if such coins left the country, they might be melted down for the gold and silver content (which was illegal in the country)
RATIO: A state has a genuine interest in protecting its mint coinage from destruction.

Question 21

Eugen Schmidberger Internationale Transporte Planzuge v Austria

Answer 21

Environmental protect group gave advance notice to Austrian authorities and staged a legal demonstration, which resulted in the closure of the motorway for 24 hours; authorities gave advance warning in Austria, Germany and Italy; German company claimed damages but failed
RATIO: Freedom of expression must be protected and provided that Member States do so in a way that is the least restrictive of free movement of goods, the State will not be in breach of Art 34 (Contrast with Angry Farmers case)

Question 22

Angry Farmers

Answer 22

the measure complained of was a failure by the French Government to take action against French protestors who were waging a violent campaign against imported goods (intercepting lorries, destroying their cargoes, etc). The French Government argued in its defence that if it had taken steps against the protesters, even worse violence would have broken out. Although such an argument was potentially possible under the public policy exception, the French Government was unsuccessful in this case, primarily because it had allowed the situation to go unchecked for many years.

Question 23

Newcastle Disease

Answer 23

UK gov prohibited the import of French poultry into the UK, ostensibly to void the spread of Newcastle disease; evidence put forward indicated that the prohibition was unnecessarily restrictive (Immunisation would have sufficed); held to actually be intended to protect the UK poultry industry.
RATIO: Measures must be proportionate and not go beyond what is necessary; Art 36 must not be misused in such a way so as to protect national industry rather than respond to a real concern in terms of public health or other.

Question 24

Campus Oil Ltd

Answer 24

Irish law required importers of petrol to buy a percentage of their requirements form a State-owned refiner; challenged by Campus Oil; Gov argued its measures were valid on public security and public policy grounds; succeeded on public security grounds but not on public policy.
RATIO: Petroleum products are of exceptional importance as an energy source in the modern economy and laws which seek to guarantee the uninterrupted supply of such products are justified on public security grounds.
(ecj rejected public policy argument)

Question 25

Deutsche Gammophon GmbH

Answer 25

German copyright law used to prevent the sale of records which had travelled from Germany to France and then re-imported into Germany; held to actually be used to prevent the re-importation of record lawfully sold in France, and therefore had nothing to do with actual IP rights
RATIO: Exception for IP rights can only be used for the purpose of safeguarding the rights which constitute the specific subject matter of the property (i.e exceptions can be used to protect the existence of an IP right but not to control how the IP right is exercised)

Question 26

PreussenElektra

Answer 26

PreussenElecktra attacked German law designed to promote the use of electricity from renewable sources; Advocate General suggested that directly discriminatory measures should be justified on environmental grounds; ECJ did not change the rules but allowed the national measure to be justified on environmental grounds.
RATIO: A state may be able to justify directly discriminatory measures for reasons outside of the Art 36 exceptions; however, the extent to which it will be able to do so, and for what reasons, is as yet unclear.

Question 27

Cassis De Dijon

Answer 27

German law requires Cassis to have a min alcohol content of 25% to be sold in Germany, whereas French cassis had an alcohol level of only 15-20%; Germany argued requirement justified on grounds of public health and consumer protection and failed
RATIO: Obstacles of free movement can be accepted in so far as they are necessary to satisfy mandatory requirements (Public or general interest reason for having the restriction in place) relating to; the effectiveness of fiscal supervision, the protection of health, the fairness of commercial transactions and the protection of consumers.

Question 28

Cinetheque SA

Answer 28

French law banned the sale or hire of videos of films during their first year of release; successful defended law on grounds of ‘protection of culture’ i.e to encourage people to go to the cinema, thus protecting the profitability of the French film industry
Ratio: The Cassis list is not exhaustive and may include things such as protection of culture.

Question 29

Disposable Beer Cans

Answer 29

Denmark insisted that producers use bottle instead of cans for a recycling scheme; importers argued bottles were more expensive to import than cans as they were heavier and that the measure amounted to an MEQR; Denmark successfully argued scheme was for protection of environment; held to be valid subject to proportionality.
RAITO: The cassis list is not exhaustive and may include things relating to the protection of the environment.

Question 30

Beer Purity Laws

Answer 30

German law imposed an absolute ban on additives in beer; ECJ held that the additives prohibited did not constitute a danger to public health, therefore the law was not necessary.
RATIO:
Measures under Cassis must be necessary: this means (1) is it necessary at all? And if it is, 2) is it proportionate?

Question 31

Walter Rau

Answer 31

Belgian law required margarine to be packed in cube-shaped boxes; indistinctly applicable; justified this on grounds of consumer protection; ECJ accepted need for consumers to distinguish butter and margarine, but held that law went beyond what was necessary and clear labelling would have sufficed.
RATIO: where measures are justified under Cassis, they may still fail on grounds that they go beyond what is necessary.

Question 32

Schmidberger

Answer 32

ECJ balanced need to protect free movement of goods with need to protect right of freedom of expression. Concluded that provided the measures taken to protect the freedom of expression did not go beyond what was necessary, they could be justified.

Question 33

Ex p Gallaher Ltd

Answer 33

Tobacco companies challenges UK regulations implementing the Tobacco Labelling Directive, which was a harmonization Directive concerning the packaging and labelling of tobacco products; UK regulations required larger warned on UK produced tobacco products; ECJ held this was permissible even If discriminated against domestic products
RATIO: States may pass national laws which impose higher or stricter requirements on their own products than on foreign products.