Free Movement of Goods I

Question 1

Art.3(3) TEU

Answer 1

Art.3(3) provides that the EU shall establish an internal market with the aims of achieving competition, balanced growth within the EU etc.

Question 2

Art.26(2) TFEU

Answer 2

Art.26(2) is more specific on how the internal market should operate = comprise an area without internal frontiers to ensure that the four freedoms are enabled

1) Free movement of workers
2) Free movement of goods
3) Free movement of services
4) Free movement of services

Question 3

Article 34-35 TFEU

Answer 3

Article 34 TFEU prohibits quantitative restrictions on imported goods and all measures of equivalent effect (MEQRs). Article 35 TFEU prohibits QRs and MEQRs for exported goods.

So any national rule which amounts to a QR/MEQR of imports or exports are prohibited and invalid under Articles 34-35 TFEU.

Question 4

Commission v Italy

Answer 4

Goods are defined as products that can be valued in money and are capable of forming the subject of a transaction

Question 5

Geddo v Ente Nazionale

Answer 5

Prohibition on QRs under Arts.34-35 covers ALL measures that amount to a total or partial restraint of imports, exports or movement of goods in transit

Question 6

Rosengren

Answer 6

CJEU held that Sweden’s ban on individuals importing wine from other MS without personally transporting it = a QR, because the state monopoly was NOT under a counter-balancing obligation to sell those wines to citzens itself

Question 7

Dassonville

Answer 7

CJEU held that all trading rules enacted by MS which are capable of hindering intra-community trade, whether directly or indirectly, are considered to be MEQRs.

Dassonville also introduced the concept of distinctly and indistinctly applicable MEQRs. Distinctly applicable MEQRs are those which discriminate as a matter of law - i.e. the law is more restrictive on imported goods than it is on domestic goods (different legal standards).

Indistinctly applicable MEQRs are measures which do not discriminate as a matter of law against imported goods, but nevertheless in fact impose a more onerous burden on imported goods.

Question 8

Commission v Ireland (Jewellery)

Answer 8

Irish law requiring imported jewellery to have a mark on it indicating it came from outside of Ireland was a distinctly applicable MEQR, since it imposed a stricter standard on imported goods than domestic goods.

Question 9

Directive 70/50

Answer 9

Use alongside Dassonville - Directive 70/50 provides that all MEQRs, including distinctly and indistinctly applicable ones, are to be abolished.

Question 10

Cassis de Dijon

Answer 10

This was a seminal case in terms of expanding what constitutes an MEQR. CJEU introduced the principle of mutual recognition for free movement of goods - provided a good is lawfully manufactured in one MS, there is no reason why it cannot be introduced in that form into another MS.

So CJEU held that the German law requiring alcoholic liqueurs to have a certain alcoholic percentage in order to be sold as alcohol in Germany was an MEQR, even though it was not discriminatory in fact or at law because the exact same standard applied to domestic goods. This confirms Dassonville that Art.34 TFEU applies to measures that are not discriminatory towards imported products, but which inhibit free movement of goods because they impose a further burden (dual burden) on imported goods.

Question 11

Commission v Germany (German Beer)

Answer 11

Germany had a national rule stating that to sell a product as beer in Germany, it must only comprise specific ingredients. CJEU held that this was an indistinctly applicable MEQR because the German national law crystallised particular consumer habits in a way that discriminates against imported goods.

Therefore, indistinctly applicable MEQRs which crystallise consumer habits in favour of domestic goods at the expense of imported goods = indistinctly applicable MEQRs and are prohibited under Art.34 TFEU.

Question 12

Commission v UK

Answer 12

UK imposed requirement that certain products be labelled with their origin of production before sale - also applied to goods produced in UK. CJEU held that it was a distinctly applicable measure because by its very nature it was intended to allow consumers to distinguish between products on the basis of nationality.

So where the purpose/inevitable effect of a domestic rule is to allow consumers to distinguish between and potentially discriminate against imported goods and domestic products = distinctly applicable MEQR

Question 13

Keck & Mithouard

Answer 13

Selling arrangements which are NOT discriminatory against imported goods do not fall within the scope of Art.34, and thus are allowed.

Therefore, the French law which prohibited the sale of goods for less than their actual purchase price was not prohibited under Art.34, since it fell outside of its scope because it was not discriminatory towards imported goods (selling arrangement law also applied to domestic goods).

Question 14

Punto Casa v Sindaco

Answer 14

Shop opening hours are considered to be selling arrangements and therefore fall outside of the scope of Art.34, provided they are not discriminatory.

Question 15

Dynamic Medien

Answer 15

CJEU defined what constitutes a selling arrangement - if the national measure requires the product itself to be altered in some way (generally including packaging also), then it is not a selling arrangement and thus falls within the scope of Art.34 TFEU as an MEQR.

Question 16

Tommaso Morellato

Answer 16

Italian rule stated that a certain type of bread must be packaged differently to normal bread - does not seem to be selling arrangement per Dynamic Medien, as it requires the product to be altered.

However, CJEU held that this WAS a selling arrangement because the packaging requirement here related to the marketing of the bread, rather than the product itself - the Italian rule here only required bake off bread to be packaged in a certain way right at the end of the entire process before being sold, so it was a selling arrangement because packaging did not need to be changed in order to get into the MS etc.

Question 17

Rau

Answer 17

However, packaging requirements do normally constitute a product requirement rather than a selling arrangement and thus fall within the scope of Art.34 per Dynamic Medien

Question 18

De Agostini

Answer 18

Swedish law prohibited TV advertising to children under the age of 12. CJEU held that advertising restrictions can amount to MEQRs where they discriminate against imported goods as a matter of fact, because the consumers of that MS have less exposure to imported goods generally.

So where restrictions on advertising discriminate against imported goods by impeding market access (since consumers are less familiar with imported goods than domestic goods), the measure falls within Art.34 TFEU and is prohibited as an MEQR.

But note that generally, advertising requirements that do not impede access to the market/crystallise consumer habits in favour of domestic goods = selling arrangements

Question 19

Gourmet International

Answer 19

Prohibition on all advertising of alcohol was liable to impede market access because consumers in the MS are more familiar and thus more likely to buy domestic alcoholic products than imported alcoholic products.

Therefore the broad ban on alcohol advertising was an indistinctly applicable MEQR and prohibited under Art.34 because it impeded market access of imported alcohol with which consumers are less familiar. So national rules about advertising restrictions are MEQRs if they crystallise consumer habits in favour of domestic goods over imported goods

Question 20

DocMorris NV

Answer 20

German law which prohibited the online sale of pharmaceutical products was an indistinctly applicable MEQR because it impeded access of imported goods into Germany more than it did to German goods - easier for German companies to sell pharmaceutical products in Germany than it is for companies in other MS selling goods online and then importing them in. Therefore the measure was prohibited under Art.34

Question 21

Herbert Karner

Answer 21

Rule prohibited advertising from an insolvent estate, so less restrictive and much narrower than De Agostini, Gourmet Intl. and DocMorris. CJEU held that this measure fell within the scope of Keck because there was no evidence that it impeded market access more for imported goods than domestic goods.

So where an advertising restriction does NOT impede market access more for imported goods than domestic goods, it falls under Keck and is lawful.

Question 22

Commission v Italy (Motorcycles)

Answer 22

Product use regulations - Italian law prohibited consumers from using motorcycles to tow trailers. Issue - do product use regulations = MEQRs?

CJEU recognised three different categories of MEQRs that fall under Art.34:

1) Product regulations
2) Selling arrangements which are discriminatory
3) Residual category - includes product use regulations

CJEU held that any measure which hinders market access of imported products to another MS falls within Art.34 = MEQR, including product use regulations. Thus product use regulations constitute MEQRs where they impede market access

Question 23

Mickelsson and Roos

Answer 23

Swedish law prohibited the use of open water jet skis in such a way that they was a virtual blanket ban - CJEU held that this product use regulation fell within the scope of Art.34 TFEU because it substantially hindered access to the market of a product produced in one MS into another MS.

So product use regulation = MEQR if it substantially hinders market access for goods produced in one MS into another MS - even if the measure is not discriminatory in fact

Question 24

Leclerc-Siplec

Answer 24

Advocate General Jacobs advocated the substantial hindrance to market access approach over the current selling arrangements (which are discriminatory) approach - when the measure affects the goods themselves, then = substantial hindrance of market access and thus an MEQR.

But if it was just a non-discriminatory selling arrangement, then it would depend on a number of factors whether it is an MEQR

Question 25

Commission v Ireland (Horizontal effect)

Answer 25

Art.34 TFEU only applies to emanations of the state - see Foster v British Gas for factors to determine whether an emanation or not.

Art.34 can be relied upon even against a nominally private body, where its management is appointed by the state and it receives some level of state funding.

Question 26

Alfa Vita

Answer 26

Greek law on bake-off bread required stores selling this bread to have fully equipped bakeries, even though this is not required for the cooking process. CJEU held that this was NOT a selling arrangement and instead a product requirement because it was actually a rule relating to the manufacturing process of the product.

So this is an example of where selling arrangements were NARROWLY CONSTRUED by the CJEU - generally the court has given a very limited scope to Keck.

Question 27

ITWF v Viking Line

Answer 27

Art.34 does NOT have horizontal direct effect - so it can only be relied upon against QRs/MEQRs introduced by the MS, not against private actors. CJEU’s reasoning was that private actors generally are not powerful enough to impede market access

Question 28

Commission v France (Strawberries)

Confirmed in Schmidberger v Austria

Answer 28

Although Art.34 does NOT have horizontal direct effect, it does impose positive obligations on MS to prevent private actors from impeding market access for imported goods.

CJEU held that the French government had acted contrary to Art.34 by failing to prevent French farmers from destroying Spanish strawberries - so although Art.34 only has vertical direct effect, it does impose positive obligations on MS to prevent private actors from hindering market access for imported goods.

So in PQ - advise party that they cannot bring a claim against the private body, but they can claim against the MS fUor breaching Art.34 obligations by not preventing the 3P from hindering market access for imports.

Question 29

General FMG PQ Approach

Answer 29

1) Is there a measure in breach of Art.34 TFEU? QR/MEQR.
2) Can the restriction be justified? Art.36 or mandatory requirements.
3) Was the measure proportionate? Suitability + least restrictive trade means, then briefly consider the good governance approach.

Question 30

Schmidberger v Austria

Answer 30

CJEU held that Austria could rely on the mandatory requirement of protection of fundamental rights in relation to protection freedom of expression as this was proportionate. They could have outright banned the protesters, but this would have been an excessive infringement upon their freedom of expression and thus the Austrian government measure was justified and proportionate.

Note that the CJEU was also clear here that failure to prevent third party private actors from hindering market access does constitute an MEQR - so in PQ consider whether the govt. not intervening affects imported goods more then domestic to decide whether distinctly/indistinctly applicable MEQR