Free movements of goods Flashcards
C-8/74 Dassonville [1974] ECR 837
- All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade were to be considered as measures having an effect equivalent to quantitative restrictions under Article 34 of the TFEU (article 30 EEC)
- National rules concerning the authenticity of products are permissible but ‘subject to the condition that these measures should be reasonable and that the means of proof required should not act as a hindrance to trade between member states’: [6]
- Such rules cannot “constitute a means of arbitrary discrimination or a disguised restriction on trade between member states … [t]hat may be the case with formalities, required by a member state for the purpose of proving the origin of a product, which only direct importers are really in a position to satisfy without facing serious difficulties”: [7] – [8]
Applicants were subject to criminal proceedings for importing scotch whisky that were in free circulation in France without a certificate of origin from the British customs authorities
Under Belgium law, the import of goods bearing a designation of origin must be accompanied by an official document issued by the government of the exporting country
However, it was extremely difficult to obtain such a certificate for scotch whisky in free circulation in France, and was only practical to obtain by importing directly from the producer in Britain
- C-120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649 (Cassis de Dijon)
National rules that lay down requirements for goods are deemed measures with effect equivalent to quantitative restrictions on imports under Article 34 TFEU, even if they apply to both domestic and imported goods, unless there is a public interest justification that takes precedence.
A measure of German law laid down that the marketing of fruit liqueurs is conditional upon a minimum alcohol content of 25%
Cassis de Dijon is a blackcurrant liqueur from France that has between 15 and 20% alcohol
Cassis de Dijon producers argued that the requirement has an effect equivalent to a quantitative restriction on imports contrary to Article 30 EEC (now Article 34 TFEU)
Rationale :
- In the absence of Community regulation, member states may regulate the production and marketing of alcohol and alcoholic beverages, disparities in national rules that lead to obstacles to movement may be accepted if there are good justifications, such as fiscal supervision, public health, fairness in commercial transactions and consumer protection: [8]
- The German government also argued that standardisation of products in the interest of create consumer transparency. however, products can display of an indication of origin and of the alcohol content on the packaging of products: [13]
- Thus, the rules do not serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods: [14]
- C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097
Selling arrangements do not fall within the scope Article 34 TFEU unless they apply only to imported goods
French legislation banned the resale of goods at below purchase price. The claimants argued that the prohibition contravened what is now Article 34 TFEU
Rationale :
- National rules that relate to the manufacture and marketing of a product (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 34 TFEU, even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods: [15]
- In contrast, national rules on selling arrangements do not constitute measures of equivalent effect prohibited by Article 34 TFEU, unless they discriminate between imported goods and domestic goods: [16]
= more lenient approach to selling arrangements as they are less restrictive of trade than product-related rules since they do not require manufacturers in another member state to modify their goods for export
- C-405/98 KO v Gourmet International Products, [2001] ECR I-1795.
The Swedish general ban on commercial advertising of alcoholic beverages in periodicals - here Gourmet- was deemed incompatible with EU law ( article 28 and 49 TFEU) but left to Swedish courts to examine whether the ban could be justified (i.e. proportionate) to its objective to protect the health and life of humans.
In 1997 the Swedish Consumer Ombudsman brought action against Gourmet, a periodical on food and drinks, in the Stockholm City Court, arguing that its advertising violated the general ban on commercial advertising of alcoholic beverages. Gourmet responded that the application of the Swedish ban contravened EU law principles on free movement of goods (Art. 28) and the freedom to provide services (Art. 49). The Stockholm City Court referred the case to the ECJ for a preliminary ruling.
- C-110/05 Commission v Italy (mopeds) 10 Feb 2009.
a measure hindering market access would be considered a measure equivalent to a quantitative restriction on trade, unless it could be justified on the facts.
The Commission brought Article 226 proceedings against Italy because that state introduced legislation that prohibited motorcycles and quadricycles from towing a trailer. The Commission claimed that that prohibition was a restriction on the free movement of goods contrary to Article 28 EC. (now article 34)58.
“It follows that the prohibition laid down in Article 56 of the Highway Code, to the extent that its effect is to hinder access to the Italian market for trailers which are specially designed for motorcycles and are lawfully produced and marketed in Member States other than the Italian Republic, constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC, unless it can be justified objectively.” [58]
Case C-333/14 Scotch Whisky Association and Others v The Lord Advocate and The Advocate General for Scotland.
CJEU held that: where a national court examines national legislation in the light of the justification relating to the protection of health under TFEU art 36, it is bound to examine objectively whether it may reasonably be concluded that the means chosen are appropriate and the least restrictive for the attainment of the objectives pursued from the evidence submitted by the Member State concerned.
Ultimately the UKSC said iot was appropriate & proportional.
Case C-67/97 Ditlev Bluhme
FMG - MEQR
= the Court holds that any effect is a breach based on Dassonville even if it only applies to a tiny Danish island of Læsø, which covered only 0.3 per cent of Danish territory.
dealing with brown bees. National law forbids from having them or import them.
de minimis : applies to a tiny part of denmark => argues that the treaty cannot be breached for such a trivial poi
Case C-249/81Commission v Ireland
MEQR - FMG - Free movement
= mere potential to affect trade is sufficient
=> the govt breached EU law
The Irish Goods Council, a registered company, administered a ‘Buy Irish’ campaign. The outline of the campaign was set by government. The managing committee of the IGC had ten people appointed by the Minister for Industry. Funding came mostly from government. Trade had actually fallen by 6 per cent over the three years of the campaign. The Commission brought an action alleging that Ireland was in breach of (what is now) TFEU article 34, by restricting free movement of goods.
C-265/95 Commission v France:
FMG - MEQR
The CJEU : “article 34 is the cornerstone of the internal market” => then even an omission breaches the treaty
French farmers sabotaged imported agricultural produce, such as Spanish strawberries and Belgian tomatoes, and French authorities turned a blind eye. The Commission brought enforcement proceedings under TFEU article 258 for ‘failing to take all necessary and proportionate measures’ to prevent the obstructions to trade by the farmers. It argued the failure contravened TFEU article 34
(Case C-321/94 Charcuterie de Montagne)
FMG - Appellations
La Cour relève alors qu’une telle réglementation est discriminatoire à l’encontre des marchandises importées des autres Etats membres dans la mesure où elle réserve l’utilisation de la dénomination “montagne” aux seuls produits fabriqués sur le territoire national et élaborés à partir des matières premières nationales, aucun des motifs énumérés à l’article 36 du traité ne permettant de justifier une telle réglementation.
Suite à un contrôle dans un supermarché d’Albi, certains fabricants de produits de charcuterie du Tarn ont été traduits en 1991 devant le tribunal de police de Castres pour avoir utilisé l’appellation “montagne” sans l’autorisation administrative préalable exigée par les textes français.
Case C-184/96 E.C Commission v France
FMG - MEQR
The court holds: despite the fact that atm the market does not complain, it can deter a potential producer. The French legislation did not include mutual recognition
French govt detailed provision of how foie gras ought to be produced. If you look at the foie gras market 90% are in France and ready to adopt these measures + if you look at the foreign producers, they are already following these rules so no restriction on trade.
Case C-34/95 Konsumentombudsmannen v De Agostini
FMG - selling arrangement
The Court: the company is prevented from advertising freely, extra burden: any kind of measure that prevents the entrance of another MS market => restriction of trade
but proportionate
= the court applies a broad approach because establish what “law and fact” means difficult so rétropédalage in regards to Keck
dinosaur magazine sold by an Italian company all around Europe and newly advertised using a UK channel. On Swedish law, you cannot advertise things that specifically attract the attention of children.
The Swedish govt: this is a selling arrangement + applies equally in law and fact (Swedish and Italian magazines are subject to the same rules)
Case C-190/20, DocMorris NV
FMG - Return of Keck - selling arrangement
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A609
but note that there is. another docmorris case (regarding selling arrangements):
Deutsche Apothekerverband v 0800 DocMorris NV (Case C-322/01) [2003] ECR I-14887
Facts: Germany banned the sale of medicines by mail order and over the internet. The measure related to ‘selling arrangements’, but fell outside Keck because it had a greater impact on imports than on domestic products. Thus, the ban infringed [Article 34].
Held: The Court of Justice held that the measure could be justified on health grounds in relation to prescription medicines because consumers needed to receive individual advice and the authenticity of prescriptions must be checked. By contrast, non-prescription medicines did not present a risk, because the ‘virtual pharmacy’ could provide an equal or better level of advice than traditional pharmacies. Here, the prohibition was not justified.
= the court went back to Keck saying that it is a selling arrangement, applies in law and in fact, affects all traders => no violation because fell outside the scope of article 34.
Grand Prize Draw’ (if customer buys prescription medicinal product online). German law prevents a mail-order pharmacy from offering prizes to attract customers for provision of prescription medicines.
Case C-178/84 Commission v Germany
Free movements of goods - justifications - MEQR
Measures that impede the free movement of trade contrary to Article 34 TFEU are justified under Article 36 TFEU only if they are proportionate to achieving their aim
German rules prohibited the fermented beverages that did not use specific ingredients from using the label ‘bier’ and also absolutely prohibited the use of additives
The rules were applicable to both domestically produced and imported beer
The Commission challenged the legality of the measure under what is now Article 34 TFEU as a measure having equivalent effect to a quantitative import restriction
The German government argued that the rules are justified under Article 36 TFEU as:
the use of the permitted ingredients are what consumers expect from beer and thus protects consumers; and
the use of permitted ingredients removes the need for additives and thus protects public health
Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Austria (2003)
FMG - Fundamental Rights
The Court of Justice held that Austria’s failure to ban the demonstration infringed article 34 and 35 TFEU, and TEU art 4(3). However this was justified by the fundamental right of demonstrators to freedom of expression and assembly
Schmidberger, who ran a trucking company, claimed damages for loss caused by a protest group that had prevented it taking goods to Austria by lorry. Transitforum Austria Tirol organised a demonstration to block the Brenner Autobahn, A13, a transit between Northern Europe and Italy. It did so for 30 hours, in protest against the environment and health problems from the increase in movement of heavy goods on the motorway.
