Free movement of goods - the basics* Flashcards
What are the main legal sources for free movement of goods?
Art 34 and 35 TFEU banning quantitative restrictions an all measures having equivalent effect between MSs on both import and export
34 import
How was goods defined in the C Art treasures and other judgements
“[p]roducts which can be valued in money and which are capable, as such, of forming the subject of commercial transaction.” - C-7/68 Commission v. Italy (Art treasures)
“goods” are an EU concept and need to defined by EU law
Also blood - C-421/09 Humanplasma for example very wide interpretation
C Art treasures
Defined goods
“[p]roducts which can be valued in money and which are capable, as such, of forming the subject of commercial transaction.” - C-7/68 Commission v. Italy (Art treasures)
What are Quantitative Restrictions (QR)
total or partial ban of imports, exports or goods in transit
import quotas or a partial or total ban
Can be seen in Henn & Darby (A ban on import of pornographic material)
What happend in C Henn and Derby
Its a sample a QS
There was a total ban on pornographic material = QS
What is a measure having equivalent effect to a quantitative restriction? MEQR
same burden in law but different in fact
This could be rules on packaging, shape, content or labeling
Like The Margarin case
Dassonville
Tell me about the Dawsonville case
To import whisky from the UK importers had to have a certificate of origin. Dassonville did not do business with UK whole sellers so getting the certificate proved to be difficult so they started faking the certificate.
Later, when this whole thing got busted they built the case on that the rule was a restriction on free movement on goods.
The court gave MEQRs a verry wide scope.
MEQRs are
“all trading rules that directly or indirectly, actually or potentially, liable to hinder intra-community trade are to be considered as measures having an effect equivalent to quantitative restrictions
It is an extremely broad scope, The core is the effect of the measure, not the intention behind it.
MEQRs can be split in two. What are they
Distinctly applicable measures and indistinctly applicable measures and
Can you name distinctly applicable measures
Measures which place conditions on imported products only or demand higher standards of imports than of domestic products (different burden in law and in fact).
Rules giving preference to domestic goods.
Such as ‘buy national’ campaigns.
Price fixing
Rules fixing maximum prices may discriminate against imported goods because if the maximum price is set too low it does not take into account the transport cost borne by the importer.
Or if florigen products need to undergo more inspections
Can you name indistinctly applicable measures
Rules which in law apply to both domestic and imported products but in fact have a particular burden on imported goods (same burden in law, different burden in fact).
May have the purpose of protecting national markets or simply have that effect.
Product requirements the classic example:
Rules relating to designation, form, size, weight, composition, presentation, labelling and packaging.
Tell me about cassis de dijon
indistinctly applicable measures
Concerned the composition of fruit liqueurs. German Authorities refused to allow Cassis de Dijon, a blackcurrant fruit liqueur made in France, to be sold in Germany due to its insufficient alcoholic strength (the minimum was 25%).
If you wanted to sell this stuff in germany you would have to change the label, selling routs and other stuff like that that would lead to a significant investment in order to comply with german laws
The rule as such has a discriminatory effect as they set out a dual burden on foreign producer
- General principle of mutual recognition - if a good is produced in another MS you sould be able to sell it under the same circumstances and laws that interfere with this could be a breach of Art 34
- The rual of reason. If you realy have a good reson for this rule like public health, road safety or other reasonable rules.
Can state measures be discriminatory?
Yes,
See buying irish, and spanish strawberrys
Tell me about Keck
Keck sold beer and coffee below cost price and that was forbidden in France.
They pointed to the principle of mutual recognition and said that in other MSs you can sell stuff under market price
If I can do it in other MSs I can do it in france.
ECJ said no. It was not about product it was about selling arengement. Under what cercimstance you can sell a product
We can learn from this case that you can MSs are allowed to introduce indisticly applicable measures as long as it concerns selling arrangements
Cassis was concerning product requirements
Selling arrangements regulate the context of sales, not the goods themselves. As long as they are non-discriminatory, they don’t usually infringe EU law on free movement of goods.