Free Movement of Goods- Non-Fiscal Barriers

Question 1

R v Royal Pharmaceutical Society of GB

Answer 1

articles 34 and 35 applying to members adopted by quasi public bodies (e.g. in addition to them applying to public bodies within the member states)

Question 2

Commission v France, Spanish Strawberries case

Answer 2

Demonstrates that although art 34 and 35 are not applicable to private entities, the state must take measure to ensure that private entities are not obscuring the free movement of goods.

Question 3

Commission v Ireland ‘Buy Irish’ case

Answer 3

the state cannot circumvent their obligations under art 34 by relying on private companies. Promotional campaign was a MEQR because it gave preference to domestic goods - prohibition in Art 34 not confined purely to binding measures adopted by a member state but extended to a promotional campaign launched by the gov of that state which had potential effect comparable to that resulting from binding measures.

Question 4

Geddo v Ente

Answer 4

quantitative restrictions defined as “as total or partial restraint… of imports, exports, or goods in transit.”
• This includes both bans (R v Henn & Darby (porn coming into UK case) and quotas International Fruit case (licencing system that only allowed importers to import a specific quantity of a product)

Question 5

Dassonville

Answer 5

defined MEQRs as “all trading rules…capable of hindering, directly or indirectly, actually or potentially, intra-Community trade” – became known as the Dassonville formula: this formula does not define MEQRs in terms of distinct or indistinct applicability. Rather, it requires that the trading rule must be capable of hindering trade between Mmember Sates in order to be classed as an MEQR.
Belgian law in this case was held to be an MEQR as the law restricted channels for imports- as the certificates could only be obtained with great difficulty if the goods were not imported directly from the country of origin.

Question 6

Firma Denkavit

Answer 6

was a Distinctly Applicable MEQR because of the additional requirements on imports -milk based feeding stuffs could only be imported into Germany if the satisfied 2 conditions- both held to be MEQRs prohibited by art.30

Question 7

Cassis de Dijon

Answer 7

Cassis de Dijon was a blackcurrant fruit liqueur made in France. The law was indistinctly applicable because it applied equally to domestic and imported liqueurs, but it had the effect of impeding the importation of French cassis, which had an alcohol content of between 15 and 20%. The German law was an MEQR.)

This case established the Presumption of Mutual Recogonition and the Principle of Mandatory Requirements.
(THESE PRINCIPLES ONLY APPLY TO INDISTINCTLY APPLICABLE MEQRs not distinctly)

Question 8

Walter Rau

Answer 8

applies the Cassis principles (Belgian legislation required all margarine in Belgium to be sold in cubic packs. This requirement applied irrespective of the origin of the margarine. Had effect of ensuring there was practically no margarine of foreign origin on the Belgian market. Belgian gov defended the law by relying on (2) the mandatory requirement of consumer protection, arguing the measure was necessary to prevent consumer confusion between margarine and butter – court of justice held legislation to be a MEQR.)

Question 9

Cinethèque SA

Answer 9

Developed the Cassis Principles through adding Protection of cultural activities

Question 10

Comm v Denmark (Disposable Beer Cans)

Answer 10

Developed the Cassis Principles through adding Environment protection

Question 11

Schmidberge

Answer 11

Developed the Cassis Principles through adding Protection of fundamental rights

Question 12

PreussenElektra

Answer 12

Developed the Cassis Principles through adding that there can be no extension to distinctly applicable MEQRs

Question 13

Henn & Darby

Answer 13

Art 36 Derogation -on grounds of public morality (porn films case) – compare with Conegate (inflatable love dolls case in Germany where ban on these dolls was arbitrary so they could not rely on derogations under art 36)

Question 14

R v Thompson

Answer 14

Art 36 Derogation on grounds of public policy

Question 15

Campus Oil

Answer 15

Art 36 Derogation on grounds of public security (This was because petroleum products are of fundamental importance for the existence of the sate since its institutions, essential public services and the survival of its inhabitants dependent upon them) This case also highlights the needs for proportionality. Contrast with Comission v Greece where the court of justice held that these measures infringed on Article 34 TFEU and rejected argument that they were justified on the grounds of public security because Greece had failed to prove that the public-sector refineries would be unable to dispose of their products on the market at competitive prices without the measures that infringed on art 34.)

Question 16

Commission v Germany (beer purity case)

Answer 16

Art 36 Derogation on grounds of for the protection of health and life or humans (animals or plants (it failed in this case though)

Question 17

Sandoz BV

Answer 17

In terms of the derogation on grounds of health, see this case see for if the evidence of the health risk is inconclusive

Question 18

Commission v United Kingdom (imports of poultry meat case)

Answer 18

this case highlights the fact that in order for the derogations to apply the derogation must not disguise a restriction on trade

Question 19

Criminal Proceedings against Bluhme

Answer 19

Art 36 Derogation on grounds of for the direct protection of life

Question 20

Oosthoek

Answer 20

Selling Arrangement- Ban on free gifts within a commercial activity)

Question 21

Cinéthèque

Answer 21

Selling Arrangement -1 year ban on sale of videos in France

Question 22

Torfaen BC v B & Q

Answer 22

Sunday trading hours saga

Question 23

Keck & Mithouard

Answer 23

– Keck test:
Product requirements would be MEQRs and Selling arrangements would not be MEQRs so long as:
1. Applies to all traders within national territory
2. Affects imported & domestic products the same in law & in fact

In this case not an MEQR - minimum sales prices

Question 24

Tankstation

Answer 24

Not an MEQR because limits on opening hours

Question 25

Punto Casa

Answer 25

Not an MERQ- Sunday trading hour

Question 26

De Agostini

Answer 26

(television advertisements ban – applied to all traders equally but limited and created problems to imported goods being able to be advertised) – was a total ban

Question 27

Herbert Karnar

Answer 27

Contract with De Agostini as not a total ban

Question 28

Familiapress

Answer 28

The Austrian government argued that the prohibition was a selling arrangement because competitions were merely a method of sales promotion. The Court of Justice disagreed and held that it was a product requirement because the competition appeared in the magazine itself and the restriction would require the contents of the magazine to be altered. The prohibition was therefore an MEQR.

Question 29

Mars

Answer 29

Mars argued that any prohibition on it selling the ice cream was an MEQR contrary to Article 34. The Court of Justice held that the restriction was not a selling arrangement but was a product requirement as it related to the wrappers which were part of the product. The manufacturer would have to change the wrappers and thereby incur additional costs.

Question 30

Commission v Italy (‘Trailers’)

Answer 30

held that MEQRs were not confined to measures which have a discriminatory object or effect and to indistinctly applicable product requirements but also consisted of any other measure which hinders the access to the market of a Member State of products originating in other Member States. The prohibition thereby constituted an MEQR under Article 34 unless it could be justified. The Grand Chamber found that the restriction could be justified on the ground of the need to ensure road safety.

Question 31

Mickelsson and Roos

Answer 31

The Court of Justice held that the Swedish law had the effect of preventing users of such watercraft from using them for the specific and inherent purposes for which they were intended or of greatly restricting their use. This hindered access to the market for personal watercraft because consumers, knowing that the use permitted by the national law is very limited, will have only a limited interest in buying that product. The measure was an MEQR as a result unless it could be justified. this restriction was capable of being justified on the ground of environmental protection, both in the form of a mandatory requirement and by reason of the Article 36 derogation for the protection of the protection of health and life of humans, animals and plants. It would now appear that any measure which hinders access to the market of a Member State, such as by having the potential to reduce the volume of trade between Member States, may be classifiable as an MEQR and thereby be prohibited by Article 34.

Question 32

R v Thompson

Answer 32

art 35 prohibited ban on silver coins

Question 33

R v Ministry of Agriculture, Fisheries and Food.

Answer 33

Art 35 prohibited the refusal to grant export licences

Question 34

iP.B. Groenveld BV v Produktschap voor Vee en Vlees

Answer 34

CofJ made clear that Court would generally be reluctant to apply Article 35 to indistinctly applicable measures adopted by the Member State of export

Question 35

Procureur de la République de Besançon v Les Sieurs Bouhelier

Answer 35

example of a distinctly applicable measure prohibited under art 35) French law required exports of watches to be authorised by export licences or to be accompanied by standards certificates issued by the French technical centre for industry. This was to guarantee quality standards. There was no equivalent requirement for watches sold in France. The Court of Justice held that this was a breach of Article 35. The fact that the obligatory quality standards only applied to exported watches and not to those marketed in France was a form of arbitrary discrimination which constituted an obstacle to intra-Community trade.

Question 36

Gysbrechts

Answer 36

(indistinctly applicable measure prohibited under Art 35) CofJ held that the Belgian prohibition deprived traders of an efficient way of guarding against non-payment, especially when the company had undertaken not to use the credit card details before the expiry of the period for withdrawal. The consequences of this were more significance for cross border sales than for domestic sales because of the obstacles to bringing legal proceedings in another Member State. As a result, this constituted an MEQR on exports under Article 35 TFEU, notwithstanding that the Belgian rule was indistinctly applicable.