Free Movement of Goods Cases Etc 2

Question 1

Commission v France Spanish Strawberries

Answer 1

• 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

Question 2

Royal Pharmaceutical

Answer 2

Art 34 applies to public or quasi public bodies within member state

Question 3

Apple and Pear

Answer 3

Art 34 applies to public or quasi public bodies within member state

Question 4

Geddo

Answer 4

Quantitive restriction defined:

Measure which amounts to total or partial restraint of imports exports goods in transit

Question 5

Henn and Darby

Answer 5

UK ban on importation of pornography constitued a QR

Question 6

International Fruit Co

Answer 6

Licence restricting imports to quotas is QR

Question 7

Dassonville

Answer 7

MEQR defined:

any trading rule capable of hindering, directly or indirectly, actually or potentially, trade

Question 8

Walter-Rau

Answer 8

Indistinctly applicable MEQR.

• Margarine tub packaging had to conform to Belgian rules
• enforcing same packaging is disproportionate

Question 9

Commission v Ireland Buy Irish

Answer 9

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

Question 10

Firma Denkavit Futtermittel

Answer 10

Breached Art 34. Requirement for inspection of goods was MEQR cause it caused delays and increased transport costs

Question 11

Commission v Ireland Dandalk Water

Answer 11

Breached Art 34.

• Pipes need to comply with Irish standard mark
• BUT only one manufacturer complied to the standard and was an irish manufacture

Question 12

Conegate

Answer 12

German lovedolls.

- Art 36 derogation on public policy NOT allowed because UK manufacturers allowed to make the same product

Question 13

R v Thompson

Answer 13

Art 36 allowed to protect right to mint coinage.

- Ban on silver coins to prevent them being melted down/destroyed

Question 14

Cullet v Centre Leclerc

Answer 14

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

Question 15

Campus Oil

Answer 15

Art 36 derogation on public security
- allowed because of exceptional importance of petroleum prodcuts as energy source and ireland imported all of its petrol

Question 16

Commission v Germany Beer Purity

Answer 16

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

Question 17

Santoz

Answer 17

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

Question 18

Commission v UK Poultry Meat

Answer 18

Ban on foreign poultry couldn’t be justified under Art 36 derogations.
- Arbitrary measurs/disguised barriers to trade NOT allowed under Art 36

Question 19

Commission v Netherlands

Answer 19

Blanket bans not permitted as they are disproportionate

- could use case by case analysis of possible dangers of fortified foods instead

Question 20

Cassis de Dijon

Answer 20

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

Question 21

Verein v Mars

Answer 21

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

Question 22

Commission v Italy Relabelling Cocoa

Answer 22

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

Question 23

Commission v Denmark Disposable beer cans

Answer 23

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.

Question 24

Cinetheque

Answer 24

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

Question 25

Schmidberger

Answer 25

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

Question 26

Keck

Answer 26

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

Question 27

Torfaen

Answer 27

Domestic courts unsure if Sunday trading rule restrictions are necessary and proportionate

Question 28

Stoke on Trent

Answer 28

Sunday trading rules ARE necessary and proportionate - affect domestic goods and imports the same

Question 29

Tankstation

Answer 29

All night closure of petrol stations allowed. NOT a breach of Art 34 if Keck test satisfied

Question 30

Punto Casa

Answer 30

Sunday trading rules. NOT a breach of Art 34 if Keck test satisfied

Question 31

Herbert Karner Auktionen

Answer 31

Restriction on advertising of auctions of goods from insolvent firms NOT a breach of Art 34 if Keck test satisfied

Question 32

De Agostini

Answer 32

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

Question 33

Gourmet international

Answer 33

bans on advertising alcohol

- indistinctly applicable MEQR as impeded access by foreign producers to market more than domestic

Question 34

Familiapress

Answer 34

Ban on magazines with competition prizes for big money. Could have breached Art 34 as ban affected foreign producers more

Question 35

Fachverband

Answer 35

Wants cultural diversity so sets minimum prices for books. Breached Art 34 as MEQR

Question 36

Groenveld

Answer 36

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

Question 37

Procureur Bescancon

Answer 37

Breached Art 35 - restrictions on exports

Question 38

Art 30 TFEU

Answer 38

prohibition of customs duties and charges having equivalent effect

Question 39

Art 46

Answer 39

exhaustive list of circumstances in which Art 30 can be derogated from

Question 40

distinctly applicable MEQRs

Answer 40

MEQR that does not apply to domestic and imported goods equally

Question 41

indistinctly applicable MEQRs

Answer 41

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.

Question 42

Rule of reason

Answer 42

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

Question 43

Test for selling arrangements

Answer 43

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