Free Movement of Goods Flashcards
Art Treasures
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
Riseria Luigi Geddo v Ente Nazionale Risi
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
Dassonville
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.
Buy Irish Campaign
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
UHT Milk
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.
Origin Marking
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.
Angry Farmers
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.
Irish Souvenirs
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.
Keck and Mithouard
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.
Punto Casa v Capena
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.
Commission v Greece
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
Hunermund
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.
Leclerc-Siplec
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.
Mars
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
Clinique
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.
Gourmet International
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.
Schutzverbrand gegen unlautern Wettbewerb
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
R v Henn and Darby
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.
Conegate Ltd
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.
R v Thompson
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.
Eugen Schmidberger Internationale Transporte Planzuge v Austria
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)
Angry Farmers
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.
Newcastle Disease
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.
Campus Oil Ltd
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)
