Free Movement of Goods Cases Etc 2 Flashcards
Commission v France Spanish Strawberries
- France didnt act to stop French farmers sabotaging imports of Spanish strawberries.
- MS held liable if it has not taken action to stop individual flouting anti-competition rules
Royal Pharmaceutical
Art 34 applies to public or quasi public bodies within member state
Apple and Pear
Art 34 applies to public or quasi public bodies within member state
Geddo
Quantitive restriction defined:
Measure which amounts to total or partial restraint of imports exports goods in transit
Henn and Darby
UK ban on importation of pornography constitued a QR
International Fruit Co
Licence restricting imports to quotas is QR
Dassonville
MEQR defined:
any trading rule capable of hindering, directly or indirectly, actually or potentially, trade
Walter-Rau
Indistinctly applicable MEQR.
- Margarine tub packaging had to conform to Belgian rules
- enforcing same packaging is disproportionate
Commission v Ireland Buy Irish
MEQR as switches consumers from foreign to domestic products. Art 34 applies to public or quasi public bodies within member state
Trade does not have to actually be hindered, only potentially hindered
Firma Denkavit Futtermittel
Breached Art 34. Requirement for inspection of goods was MEQR cause it caused delays and increased transport costs
Commission v Ireland Dandalk Water
Breached Art 34.
- Pipes need to comply with Irish standard mark
- BUT only one manufacturer complied to the standard and was an irish manufacture
Conegate
German lovedolls.
- Art 36 derogation on public policy NOT allowed because UK manufacturers allowed to make the same product
R v Thompson
Art 36 allowed to protect right to mint coinage.
- Ban on silver coins to prevent them being melted down/destroyed
Cullet v Centre Leclerc
Art 36 derogation on public policy
- NOT allowed because France couldn’t prove that it could not deal with threats to public order from increasing petrol prices
Campus Oil
Art 36 derogation on public security
- allowed because of exceptional importance of petroleum prodcuts as energy source and ireland imported all of its petrol
Commission v Germany Beer Purity
Germany banned marketing of beer with additives. Art 36 derogation on protection of health of humans NOT allowed because Germany couldn’t prove that additives present risk to public health
Santoz
Holland allowed to ban imports of muesli bars with added vitamins as long term effects of vitamin additives not known.
- Art 36 derogation on protection of health allowed where medical evidence regarding health risk is inconclusive
- up to MS to decide the degree of protection required
Commission v UK Poultry Meat
Ban on foreign poultry couldn’t be justified under Art 36 derogations.
- Arbitrary measurs/disguised barriers to trade NOT allowed under Art 36
Commission v Netherlands
Blanket bans not permitted as they are disproportionate
- could use case by case analysis of possible dangers of fortified foods instead
Cassis de Dijon
German law said cassis had to have a minimum alcohol level which the French stuff didn’t
- BUT under mutual recognition if was sold at lower percentage in France so should be accepted by Germany.
- Establishes rule of reason (dual burden of having to meet domestic and also foreign product requirements is breach of Art 34)and mutual recognition concepts
- established rule of reason
Verein v Mars
Further example of mutual recognition. Mars bar wrappers had to be differently packaged in Germany
- otherwise producers would need a specialproduction line for german goods
Commission v Italy Relabelling Cocoa
Labelling products as chocolate substitutes would make consumers switch away from products so breached Art 34. Mutual recognition - marketed as chocolate in domestic countries. Rule of reason - no mandatory requirement relevant. CJ will balance mutual recognition with rule of reason
Commission v Denmark Disposable beer cans
Law that drinks cans must be same size ALLOWED under rule of reason - mandatory requirement is protecting environment. CJ will balance mutual recognition with rule of reason. mutual recognition rebutted here.
Cinetheque
Ban on video releases of films till after 1 year of release allowed under rule of reason as mandatory requirement to protect cultural activity of French cinema. CJ will balance mutual recognition with rule of reason
Schmidberger
Closing down major trade motorway for public demonstration was allowed under rule of reason as mandatory requirement protecting freedom of speech. CJ will balance mutual recognition with rule of reason
Keck
CJ distinguished between
1) indistinctly applicable measures that hinder trade (unlawful unless justified by Article 36 or mandatory requirements)
2) indistincly applicable measures that had an effect on the overally volume of trade but did not affect imports more than domestic products - selling arrangements.
- do not engage Art 34
Torfaen
Domestic courts unsure if Sunday trading rule restrictions are necessary and proportionate
Stoke on Trent
Sunday trading rules ARE necessary and proportionate - affect domestic goods and imports the same
Tankstation
All night closure of petrol stations allowed. NOT a breach of Art 34 if Keck test satisfied
Punto Casa
Sunday trading rules. NOT a breach of Art 34 if Keck test satisfied
Herbert Karner Auktionen
Restriction on advertising of auctions of goods from insolvent firms NOT a breach of Art 34 if Keck test satisfied
De Agostini
Ban on tv adverts directed at children and misleading adverts. Could have breached Art 34 as ban affected foreign producers more - stopped them breaking in
Gourmet international
bans on advertising alcohol
- indistinctly applicable MEQR as impeded access by foreign producers to market more than domestic
Familiapress
Ban on magazines with competition prizes for big money. Could have breached Art 34 as ban affected foreign producers more
Fachverband
Wants cultural diversity so sets minimum prices for books. Breached Art 34 as MEQR
Groenveld
Prohibition of meat manufacturers on stocking horsemeat to prevent if being accidentally exported.
NOT covered by Art 35 as didn’t have as its object the creation of a difference in trade between domestic and foreign goods
Procureur Bescancon
Breached Art 35 - restrictions on exports
Art 30 TFEU
prohibition of customs duties and charges having equivalent effect
Art 46
exhaustive list of circumstances in which Art 30 can be derogated from
distinctly applicable MEQRs
MEQR that does not apply to domestic and imported goods equally
indistinctly applicable MEQRs
MEQR that apparently applies equally to domestic and imported goods alike but has the effect of discriminating against imported goods by making them satisfy the state’s domestic rules for similar products.
Rule of reason
Cassis de Dijon
- allows different national laws as to product marketing if they are for one of four “mandatory requirements”:
1. effectiveness of fiscal supervision
2. protection of public health
3. fairness of commercial transactions
4. Defence if the consumer - only applies to indistinctly applicable MEQRs
Test for selling arrangements
from Keck: arrangements
1) apply to all affected traders operating within the national territory
2) affect in the same manner in law and in fact the marketing of domestic and imported products
