Lecture 7 - market law

Question 1

What is the internal market of the European Union characterised by?

Answer 1

The four freedoms.

• Free movement of goods (focus)
• Free movement of people
• Free movement of capital and payments
• Free movements of services/freedom of establishment

Question 2

What are the two main ways to create an internal integrated market?

Answer 2

• Positive law: Legislature-driven. We need competence to be active and make direct laws. The EU Parliament/Council creates harmonized rules.
• Negative law: Judicially-driven. The Court of Justice is active and removes national trade barriers that can’t be justified. Barriers obstructing inter-state trade in goods enacted by member states are prohibited unless there is a justification for them.

Question 3

What are trade barriers?

Answer 3

According to Article 34 in the TFEU:
“Quantitative restrictions on imports and all measures having equivalent effect (MEEs) shall be prohibited between Member States”. Since EU law prevails national law (supremacy), this is binding.

Question 4

What are distinctly applicable measures (trade barriers)?

Answer 4

There is a distinction between domestic and imported goods that are not treated equally. This can be seen as discrimination, for example if you single out all German cars for domestic advantage. This must thus be examined in the EU since it is a trade barrier.

Question 5

What are indistinctly applicable measures (trade barriers)?

Answer 5

Apply to both domestic and imported goods equally and without distinction. Can be national measures that are not directed to foreign products, but apply to all. In law, the burden is thus the same for all producers. In fact however, the burden can be different since domestic producers only need to meet the national requirement, while foreign need to take both that and their own national law into account (dual burden). Is thus a trade barrier in the form of an MEE.

Question 6

What is a selling arrangement?

Answer 6

National market circumstances and rules, such as time/place/manner of marketing. Selling arrangements are not seen as a trade barrier (art. 34 TFEU) provided that:

• They apply to all traders
• They affect domestic and imported goods in the same manner in law and fact.

Question 7

What are three types of national measures that can be seen as MEEs (trade barriers)?

Answer 7

• Distinctly applicable.
• Indistinctly applicable product requirements.
• A measure which hinders access of products from other member states.

Question 8

How can a trade barrier be saved/kept in the EU?

Answer 8

If it can be justified and is proportionate.

The national authority must demonstrate both:

• Justification on a recognised ground. (1) Article 36 derogations. Exhaustive list of when EU law permits national measures to take priority over free movement of goods, if it promotes recognised EU interests. (2) Mandatory requirements = supplementary open list. Only if indistinctly applicable measures.
• The measure is proportionate and complies with fundamental rights, by two tests. (1) Suitability - the rule is appropriate to attain the end it seeks to achieve. (2) Necessity - balancing national objectives and adverse effect on free movement. Less restrictive means that produce similar result?

Question 9

What are part of TFEU Article 36 derogations, that are allowed to prioritise over free movement?

Answer 9

• public morality, policy or security
• protection of health and life of humans, animals or plants
• protection of national treasures possessing artistic, historic or archeological value
• protection of industrial and commercial property.

But, restrictions shall not constitute a means of arbitrary discrimination or disguised trade barrier.