Free Movement of Goods III- Derogations and Justifications*

Question 1

What are the express derogations laid down in art 36?

Answer 1

The express derogations are on the grounds of:

public morality,

public policy or public security;

the protection of health and life of humans, animals or plants;

the protection of national treasures possessing artistic, historic or archaeological value;

or the protection of industrial and commercial property.

Question 2

C henn and Darby

Answer 2

Public morality

UK banned the import of obscene films and magazines on the grounds of public morality.

The CJEU: ‘It is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory’.

They could ban porno imports

Question 3

C Thompson

Answer 3

Public policy judgement

UK banned exporting silver coins, even though they were no longer legal tender, to prevent them from being melted down or destroyed.

The Court said that a ban was justified on grounds of public policy because it stemmed from ‘the need to protect the right to mint coinage which is traditionally regarded as involving the fundamental interests of the State

Question 4

C Campur oil

Answer 4

Public security

Ireland, which is totally dependent on imports for its supplies of petroleum products, required importers of these products to buy a certain proportion of their needs from a state-owned oil refinery at prices fixed by the Irish Government based on the costs incurred by the refinery.

The Court accepted that this requirement was justified based on public security. I don’t agree tho

Question 5

C Vitamins added to foodstuffs

Answer 5

Protection of health and life of humans

Prohibition on marketing of foodstuffs to which vitamins and minerals have been added

following a detailed assessment which reveals that scientific uncertainty persists as to the extent of the risk to human health, Member States could take protective measures, without having to wait until the reality and seriousness of the risks were fully demonstrated

Question 6

C Scotch Whisky Assoction

Answer 6

Protection of health and life of humans

Scotland set out measures that set minimum price for alcohol that was calculated with some strange formula.

Not found to be justifiable under this as the same could have been done with tax?

Question 7

C Ditlev Bluhme

Answer 7

Danish legislation prohibiting the keeping of any species of bee on the island of Læsø other than the Læsø brown bee. Because the prohibition protected the life of the Læsø brown bee, the rules were justified under Article 36 TFEU

Question 8

What are the constraints the Court has imposed on MSs to invoke Art 36 TFEU derogations?

Answer 8

Must be interpreted strictly

They can not be used to serve economic objectives

cannot, in principle, be relied on to justify rules or practices which contain restrictions which are explained primarily by a concern to lighten the administration’s burden or reduce public expenditure.

Question 9

Where was the rule of reason made?

Answer 9

Cassis de Dijon

Question 10

What is the rule of reason?

Answer 10

Derogations that “may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.”

Question 11

What kind of mesures can be justified on the grounds of the rule of reason (Mandatory requirements) skoða betur

Answer 11

Only non-discriminatory rules (Market access and inductility applicable measures)

This is made very clear in the case Italian Cider

skoða þetta betur

Question 12

C Italian cider skoða betur

Answer 12

Court said that the rule of reason could only be used on legislation which apply without discrimination to both domestic and imported products.

skoða betur

Question 13

Can you name some of justifications that came after the Cassis judgement

Answer 13

Consumer protection

protection of public health

fight against crime

road safety

etc.

Question 14

C recyclable bottles

Answer 14

Danish law requiring that all containers for beer and soft drinks had to be returnable. Was considered justified by reference to the protection of the environment.

Question 15

Can fundamental rights play a part?

Answer 15

Yes, Sor for example Schimidbeger.

In the case protests that hindered freemovemt of goods was found to be justified. Its a balacing act.

Spanish strawberrys in context

Question 16

Go over the principle of proportionality

Answer 16

For a measure to be proportionate it must be:

Suitable/appropriate

Necessary

Question 17

What do we mean in the context of proportionality when we say a measure must be appropriate/suitable

Answer 17

It must be appropriate/suitable to achieve the aim perused

We are looking at the relationship between the means and the end

Question 18

What do we mean in the context of proportionality when we say a measure must be necessary?

Answer 18

It must be Necessary to achieve the aim / no less restrictive measures available

This is a balancing act between the two competing interests

Question 19

Who bears the burden of proof in demonstrating that national rules satisfy the proportionality test?

Answer 19

The national authorities of the MS

Question 20

What do national authorities need to do to show that a measure is proportionate

Answer 20

They must produce specific evidence substantiating their arguments. (see case right hand cars)

However, the ‘burden of proof cannot be so extensive as to require the Member States to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions’ (C-110/05 Italian trailers).

They must also show that they have pursued the stated objectives in a consistent and systematic manner (consistency requirement).

Question 21

C japanese cartroons

Answer 21

The German authorities insisted that they re-examine and classify imported DVDs aimed at young people (Japanese ‘Animes’ cartoons) which had already been classified by the British Board of Film Classification, the relevant British authority. Because the protection of children was at stake the Court deferred to the discretion of the German authorities and gave only the most cursory examination of the proportionality principle.

Shows how to court gives a margin of discretion when it comes to question of necessity in sensitive areas

Question 22

C Rau

Answer 22

Belgian law requiring margarine to be packed in cube shaped packages, to distinguish it from butter.

The court pointed out that state should choose the means which least restricts the free movement of goods.

Consumers may in fact be protected just as effectively by other measures, for example by rules on labelling, which hinder the free movement of goods less.”

Question 23

Go over the methodology

Answer 23

Does Union law apply?
- ‘Goods’?
- Is there a cross-border element?
- Is there a State measure?

Is there a breach of Article 34 TFEU?
- QR or MEQR?
- Distinctly applicable measure? Indistinctly applicable measure (product requirement)?
- Certain selling arrangements?
- Market access (such as product use)?

Can the breach by justified?
- Article 36 TFEU?
- Mandatory requirements?
–Only for non-discriminatory measures? Or what?

Is the measure proportionate?
- Appropriate/suitable?
- Necessary (no less restrictive measures)?