Freedom of goods

Question 1

Article 26 Treaty on the Functioning of the European Union

Answer 1

The internal market shall comprise an area without borders in which freedom of goods shall be ensured through the provisions of the treaties

Question 2

Article 28 of the Treaty on the Functioning of the European Union

Answer 2

The Union shall comprise of a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties and all charges having an equivalent effect.

Question 3

Definition of Goods

Answer 3

Commission v Italy (1968) - products which can be valued in money and which are capable of forming the subject-matter of a commercial transaction

Question 4

Type of goods covered

Answer 4

From natural gas (Commission v France (2003)) to coins out of circulation (Bordessa and others)

Question 5

Article 30 of TFEU

Answer 5

Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States.

Question 6

Customs duties - no defences which can excuse a breach

Answer 6

Commission v Italy (1968)

Question 7

Van Gend en Loos v Nederlandse Administratie (1963)

Answer 7

Article 30 provides a right which can be enforced by EU citizens in national courts.

Question 8

Quantitative restrictions

Answer 8

Article 34 + Geddo (1973) + R v Henn and Darby

Question 9

Article 34

Answer 9

Quantitative restrictions on imports or measures having an equivalent effect shall be prohibited between Member States

Question 10

Definition of quantitative restrictions

Answer 10

Geddo (1973) - the prohibition on quantitative restrictions covers measures which amount to a total or partial restraint of imports,exports or good in transit

Question 11

Measures having an equivalent effect to quantitative restrictions

Answer 11

Dasonville (1974) - 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 equivalent effect to quantitative restrictions.

Question 12

Article 34 applies to both actual effects, but also to the potential effects of legislation.

Answer 12

Commission v France (foie gras) 1998

Question 13

MEEQRS: Directly and indirectly

Answer 13

Commission v Germany (1987) - directly and indirectly
Directive 70/50/EEC - distinctly applicable measures and indistinctly applicable measures.
- non-exhaustive list of MEEs such as incitement to buy domestic products (Commission v Ireland (Buy Irish)

Question 14

Distinctly applicable measures

Answer 14

Denkavit - inspected
Commission v UK (turkeys) - licence
Weinvertriebs - minimum alcohol content
Commission v Ireland (Buy Irish) - still a DAM even if after the introduction of legislation, imports have increased
Commission v Ireland (Irish Souvenirs) - Nationality of the product does not have to be shown unless the origins of a product implies a certain quality

Question 15

Indistinctly applicable measures

Answer 15

Cassis de Dijon case - rules and practices which in law apply to both national and domestic products, but in fact have a particular burden on imported goods
- reciprocity principle (if the good has been accepted in a member state, there is no reason why they should not be imported in other states) - applied in Commission v Germany (Beer purity laws)

Question 16

The Market Access Approach

Answer 16

Commission v Italy (Trailers)
Goods coming from other MS are treated less favourably (measures distinctly applicable)
Same burden in law, but different in fact (measures indistinctly applicable)
Any other measure which hinders access of products imported from EU SM to the market of another MS
C BARNARD - too broad

Question 17

The Market Access Approach Testss

Answer 17

Actual hindrance test: Commission v Greece (computer games) - imports stopped after passing the legislation
Competition-based test: Commission v Italy (lawyers’ fees) - it affected competition and advantaged MS lawyers
Additional-costs test: Commission v Italy (foodstuffs for sportsmen and women) the legislation imposed indirectly extra-costs on imported goods

Question 18

Market Circumstances

Answer 18

Keck and Mithouard

Question 19

Keck and Mithouard

Answer 19

2 types of measures:

• product-bound measures which concern the inherent characteristics of a product (such as designation, size, weight composition)
• measures relating to certain selling arrangements (Not MEEs unless they clearly discriminate against imports)

Question 20

Certain selling arrangements

Answer 20

restrictions on where or by whom goods may be sold - Commission v Greece (Processed infant milk)
restrictions on pricing - Keck and Mithouard
restrictions on advertising - Hunermund
There needs to be a substantial hindrance of market access test - AG Jacobs in Leclerc-Siplec

Question 21

De Agostini

Answer 21

A certain selling agreement is discriminatory if it does not affect in the same way, in fact and in law, the marketing of national products and imported products.

Question 22

Exports - Article 35

Answer 22

Article 35: quantitative restrictions on exports, and all measures having an equivalent effect shall be prohibited.
Groenveld (1979) - Dasonville test does not apply as there are no indistinctly applicable measures

Question 23

Derogations under Article 36: public morality

Answer 23

R v Henn and Darby (1978) pornographic content illegal in the UK

Question 24

Derogations under Article 36: public policy

Answer 24

R v Thompson(1978) - collector’s coins export forbidden because of the need to protect mint coinage

Question 25

Derogations under Article 36: public security

Answer 25

Campus Oil Ltd

Question 26

Derogations under Article 36: protection of health and life of humans, animals and plants

Answer 26

Rewe-Zentralfinaz v Landwirtschaftskammer

Question 27

Other derogations under Article36 (without cases)

Answer 27

Protection of national treasures

Portection of industrial and commercial property

Question 28

Derogations under Article 36: proportionality and consistently

Answer 28

Commission v Germany (2008)

Commission v Portugal (tinted windows)

Question 29

Casis de Dijon list supplementing Article 36 derogations

Answer 29

• protection of public goods and values, including environment (Commission v Denmark)
• protection of individuals
• protection of public order (Commission v Portugal(tinted windows)

Question 30

Remedies

Answer 30

Article 19(1) of Treaty on the European Union + Article 47 of the Charter of the Fundamental Rights of the EU
- injunction, annulment, damages