Internal Market Flashcards
What is the theory of comparative advantage?
States should be allowed to focus on producing their most best product which can then be traded - win win as more resources are produced overall.
Benefits of specialization.
What practice does comparative advantage compete with in practice?
Protectionism.
Give and explain the example case of negative harmonisation
Cassis de Dijon -
Established principle of mutual recognition because if a product was validly produced in country A, country B must allow it to be lawfully sold domestically.
Give and explain example of Exhaustive harmonisation case
Dim-Dip Lights - Where EU has exhaustively regulated in an area, MS may not legislate for a stricter standard.
What is minimum harmonisation?
Sets minimum standards but leaves MS to impose stricter standards provided they comply with the Treaty.
Titanium Dioxide (facts and 2 points)
Disagreement as to choice of legal basis for legislation relating to environmental protection. CONDUCIVE to the attainment of the single market.
HELD -
- Choice of legal basis should be based on objective factors like the aim and content of measure;
- Where two or more were equally applicable, more power should be given to democratic Parliament.
What does Art 114 say?
SAVE WHERE OTHERWISE provided in the TREATIES, May lay down measures with the object of establishment and functioning of the internal market.
Waste Directive (principle)
Mere incidental effect of harmonising market conditions does not justify recourse to Art 114.
Tobacco Advertising I (3 points)
Art 114 does not provide MS with general power to regulate internal market, which would be incompatible with Art 5 TEU (conferral)
Any measure based on Art 114 must genuinely have as its object the “improvement of the conditions for the establishment and functioning of internal market”. Any “abstract risk” was not sufficient.
Art 114 can be used to prevent emergence of FUTURE obstacles but they must be likely and the measure must be designed to prevent them.
TWO SITUATIONS in Tobacco Advertising I where 114 would be effective (Important!)
- Where measures (i) eliminate OBSTACLES TO EXERCISE OF FREE MOVEMENT (ii) likely to arise from diverse national laws
- Where the measures (i) eliminate APPRECIABLE DISTORTIONS OF COMPETITION (ii) likely to arise from diverse national laws.
Tobacco Advertising II (facts and law)
Tobacco advertising of certain types was banned.
Art 114 valid legal basis. The directive included a FREE MOVEMENT CLAUSE, designed to remove distortion of competition
(i) Likely to arise
(ii) eliminate such distortion of competition.
And measure was not disproportionate, only certain types of advertising banned.
Swedish Match I facts and law
Swedish oral tobacco company wanted to sell in UK which was prohibited. Challenged this.
HELD - measures could outright prohibit marketing of product. But does not really explain why. Compares to directive prohibiting unsafe products in workplace. - (but this encourages the sale of products which ARE safe!
Bad analogy by the court - in comparison, there is no safe alternative oral tobacco.
Philip Morris Brands (facts and law for Art 114)
Challenged Directive allowing MS to introduce extra packaging requirements of cigarettes (bigger warnings), claiming this would undermine harmonisation of packaging.
HELD - Art 114 did not require EU to remove ALL barriers, only to make trade EASIER (and prescribing minimum requirements across all MS achieved this)
Philip Morris Brands (facts and law for subsidiarity)
Argued that the public health benefits of banning flavoured tobacco were already being implemented at MS level and did not require EU action.
HELD - subsidiarity satisfied, as EU action was required due to the need to prevent differing rules here. Public health and internal market were two interdependent principles. WHERE THIS WAS THE CASE, only one principle needs to satisfy subsidiarity.
Swedish Match II facts and law
Argued that two principles, proportionality and subsidiarity were breached.
HELD - on proportionality, a measure must be shown to be ‘manifestly inappropriate’. It was not so for public health, as the EU legislature operated under precautionary principle where you can “err on the side of caution” and prohibit something where the health effects are not immediately evident.
HELD - on subsidiarity, affirmed Philip Morris. Two objectives were interdependent, and only needed to prove that one was proven to be achieved better at the EU level.
