freedom of goods

Question 1

case where the intended effect of an export charge was held to be irrelevant:

Answer 1

commission v italy (1969); (statistical levy) even when there is no benefit for the state, article 30 will be triggered when a charge is introduced on a good which has crossed a border

Question 2

two step test for being a good:

Answer 2

• must be capable of being valued in money (could be subject to a commercial transaction)
• must have some physical condition (tangible)

Question 3

difference between distinctly and indistinctly applicable measures?

Answer 3

distinctly applicable do not apply equally to domestic and imported goods; whereas indistinctly applicable measures do apply equally and without distinction

Question 4

commission v portugal 2008:

Answer 4

even indistinctly applicable measures can fall foul of article 34 if they restrict use; mandatory reqiurements; proportionality

Question 5

explain what the customs union is?

Answer 5

• prohibition of customs duties or measures having equivalent effect between MS
• all tariffs are set by the EU (states give up their right to decide the tariff, EU harmonises)
• once a good from non-EU member state enters, the tariff is paid and should be free circulation

Question 6

what is the Geddo definition of a quantitive restriction?

Answer 6

a QR is ‘measures which amount to a total or partial restraint of imports, exports, or goods in transit.’
generally - related to restriction in volume of goods that are allowed to move between MS

Question 7

case where non-activity of the state restricted imports without an explicit ban:

Answer 7

commission v france (1997) - strawberries case; violent protests to prevent argiculatral products from other states, France inadequately protected intra-community trrade by not stopping them

Question 8

difference between quantitive restrictions and MEQR’s?

Answer 8

a quantitive restriction are obvious, whereas MEQRs are hidden restrictions - these refer to a restriction on the volume of goods that are allowed to move between MS

Question 9

which case gives the definition of a MEQR?

Answer 9

dassonville (1974) - ‘all trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.”

Question 10

not neccessary to show that a measure actually restricts imports, only that is has the potential to (case)

Answer 10

commission v france (foie gras case) 1998

Question 11

importance of the Keck case:

Answer 11

• narrowed the scope of dassonville stating that selling arrangements had to be discriminatory to be an MEQR
• made distinction between measures relating to selling arrangements and other restrictions, which the former less harmful since they did not impose additional costs on traders.

Question 12

what is the 2 fold test in Keck to determine whether a measure will fall outwith article 34?

Answer 12

1 - must apply to all relevant traders

2 - must affect in the same manner, in law and fact, the marketing of domestic products and those from MS

Question 13

mickelsson case:

Answer 13

• even if there is no intent or effect of treating goods from other states less favourabley, a restriction on product use may negatively influence consumers decision to buy imported products
• however in this case restriction justfied on grounds of environmental protection - within scope of EU rules

Question 14

where can you find derogations to article 34/35?

Answer 14

cassis de dijon case ‘rule of reason’; and article 36

Question 15

importantance of cassis case:

Answer 15

• mutual recognition principle (if produced lawfully in one state then another should not change it)
• rule of reason - disparities in national law may be justified under good reason in non-exhaustive list; fiscal supervision, public health, consumer protection and fairness in commercial transactions

Question 16

scotch whisky association v lord advocate:

Answer 16

(scotlands minimum unit pricing)
-justifiable under art. 36 for protection of health (which is seen as most important); restriction appropriate and least restrictive possible; scope for negative effect on alcohol market too limited

Question 17

commission v italy (trailers)

Answer 17

court found 3 definitions of a MEQR:

• treats products from other MS less favourably
• additional conditions for lawfully manufactured products
• any other measure hindering product access

Question 18

what are cartels?

Answer 18

secret agreements between competitors to fix prices, limit production, or share markets/consumers (so cannot benefit from competition)

• they are illegal and void under art.101
• usually exist in markets of high product similarity

Question 19

examples of distinctly applicable measures?

Answer 19

• need for import/export license
• official campaigns to buy domestic over imported produce (Commission v Ireland)
• requirements to buy locally

Question 20

commission v denmark (danish bottles)

Answer 20

justification under art.36 on grounds on environmental protection generally; however held requirement for a particular container shape to be approved was disproportionate and unecessary - violation of eu law