free movement of goods II

Question 1

can national restrictions be justified?

Answer 1

in certain circumstances

Question 2

in certain circumstances, free movement rights can be restricted in compliance with EU law, if …

Answer 2

a. for discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU can be engaged;

b. for indirectly or non-discriminatory, that is, indistinctly applicable restrictive measures, an overriding requirement relating to the public interest that is capable of justifying a restriction of the fundamental freedoms established by the Treaty can be demonstrated; and

c. In both cases, the restriction also satisfies a proportionality test, that it, it is demonstrated to be both appropriate and necessary for achieving the relevant public interest objective

Question 3

when can national restrictions that are caught by art 34 still be justified?

Answer 3

if they pursue a legitimate aim (protect a public good)

Question 4

what are the two types of permissible restrictions?

Answer 4

art 36 TFEU
mandatory requirements - case law

Question 5

what is art 36 available for?

Answer 5

all national measures, including discriminatory measures

not for arbitrary discrimination or disguised restrictions on trade

Question 6

under art 36 what are the grounds that national restrictions can be justified by?

Answer 6

• public morality
• public policy
• public security
• protection of the health and life of humans, animals or plants
• protection of national treasures possessing artistic, historic or archaeological value
• protection of industrial and commercial property

Question 7

where does the burden of proof lie when relying on article 36 justifications?

Answer 7

with the member states that have infringed article 34

Question 8

is the application of article 36 automatic?

Answer 8

no

CJEU will assess whether a measure falls within the scope of article 36 and will apply the general principle of proportionality to the measure in place

Question 9

when are mandatory requirements available?

Answer 9

only for MEQR that are not discriminatory

Question 10

where does the burden of proof lie for mandatory requirement?

Answer 10

with the member state

Question 11

what is recognised under mandatory requirements post Cassis?

Answer 11

protection of environment - Commission v Denmark
pluralism of the press - Familiapress
freedom of expression and assembly - Schmidberger

there is a non-exhaustive list - the courts may recognise new mandatory requirements

Question 12

what is the proportionality test for a national measure?

Answer 12

two step test
1. suitability - is the measure appropriate to the aim? Does it contribute to achieving the aim pursued?

2. necessity - can the justification that is invoked by a MS be achieved with less restrictive means?