Freedom of goods Flashcards
Article 26 (1) TFEU
26(1) TFEU The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.
Definition of internal market - TFEU
26(2). The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.
26(3). The Council, on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
Article 34 TFEU
IMPORTS - Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
Article 35 TFEU
EXPORTS - Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
Article 36 TFEU
EXCEPTIONS FROM QR and MEEs - The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on 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. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
Definition of Goods
‘by goods, within the meaning of the … Treaty, there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions’
• Works of art (Thompson);
• Electricity (Almelo v Energiebedrijf Ijsselmij);
• Natural gas (Commission v France);
Coins which are no longer in circulation as currency (Bordessa and Others )
Commission v Italy (Case 7/68)
DEFINITION OF QUANTITATIVE RESTRICTIONS
In this case, the Court of Justice defined what is meant by the term ‘quantitative restriction’ within what is now Art 34 TFEU on the prohibition of quantitative restrictions on the free movement of goods between EU Members States as:
“[Any] measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit”
Geddo v. Ente Nazionale Risi
QRs also include a ban on imports or exports which is the most ‘extreme form of prohibition’
Derogation of public morality applied - as it was related to pornographic materials.
Henn and Darby (Case 34/79)
Definition of Measures having equivalent effect
All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-[Union] trade are to be considered as measures having an effect equivalent to quantitative restrictions’
Case 8/74 Dassonville
Directly applicable: - measures applied only to imports but not to domestic products (direct discrimination)
Indistinctly applicable: - measures applied to both but the effect on imports outweights the general effect (not discriminatory on the face of it but could involve disguised indirect discrimination ).
Dassonville formula refers exclusively to the effects of a measure, NOT its purpose.
Case 8/74 Dassonville
- Art 34 has no de minimis exception
- Although no other Member States produced foie gras, trade in foie gras would be restricted if non-French producers were to start doing so
- Even though this was only a potential restriction, it still violated art 34
- The Court of Justice found the potential restriction to be ‘non-hypothetical’ in nature, illustrating how broadly the Court will interpret the scope of Art 34
Commission v France (foie gras)
The Belgian Government imposed a levy on imported diamonds in order to provide social security benefits for diamond workers. An Art.234 (ex 177) reference was made to the ECJ.
Held: (ECJ) The imposition of a charge on goods crossing a frontier is an obstacle to the free movement of goods. Such a levy is prohibited under Art.12 independently of its destination or purpose. [1969] E.C.R. 211.
The Diamonds case - Sociaal Fonds voor de Diamantarbeiders v S.A.C. Brachfeld
Cross border element is satisfied even when the goods are merely transiting the teritory
Commission v Austria
All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-[Union] trade are to be considered as measures having an effect equivalent to quantitative restrictions’ The Dassonville formula
Dassonville
National practice - government encourage people to buy a certain type of product
Buy Irish
Potential effect/no de minimis rule
Foie gras - Commission v France
Distinctly applicable
Discriminate directly
Indistinctly applicable
Indirectly affects
Distinctly applicable measures:
- Imposing additional requirements on the imported/exported goods.
- Rules limiting channels of distribution
- National rules giving preference to domestic goods.
Buy Irish
Dassonville
Commission v Germany - Quality lable
Indistinctly applicable measures - dual regulatory burden -home state and host state - product requirements, design, form, size, weight
Boremans
Mutual recognition-equivalence principle
that once goods have been lawfully produced and sold in one MS then they should be capable of import in all other MSs. The german rules were not necessary and were disproportionate since the same object could have been achieved by clear labelling.
Cassis de Dijon
Margarine case - example of product requirements
RAU (Mars, Prantl)
The three categories:
- Distinctly applicable measures
- Indistinctly applicable measures
- Any other measure which hinders market access
Trailers
The third category from Trailers is a residual, catch all category
AMETT
The court will look for actual interference with the trade - mere differences between MSs - NOT enough
Comission v Greece (video games)
Mortelmans - rules concerning who, when, where, how
Different from MEEs - CSA
Product requirements different from CSA
CSA do NOT hinder trade if they meet the test.
1. Universality - the provision must apply to all affected traders operating in the territory
2. Neutrality - Non discriminatory (Same burden)
KECK
National rules about opening times = CSA
Boremans
Sunday trading = CSA
Punto Casa
Rules requiring retailers to have actual premises in the area = CSA
DOC Morris
Advertising* with exceptions
Hunermund
Breaking in the market exception
DeAgostini
Derogations from free movement of goods (applied very restrictively by the courts)
Art 36 TFEU
Exhaustive list of reasons for derogations
Commission v Ireland
Public morality example
Henn and Darby
Public policy example
Thompson
Public security example
Campus Oil
Examples for public health of humans, animals or plants
Doc Morris, Beer purity, San Jose scale
Test of proportionality has 2 limbs: 1. Suitability and 2. Necessity
United Foods
