Quantitative Restrictions And MEQRs Flashcards
Where do you find the Treaty base for the prohibition of quantitative restrictions and measures having equivalent effect?
Art 34 TFEU
Why are quantitative restrictions banned by the Treaty?
They restrict the quantity of goods allowed into the country by using import quotas, thus restricting the free movement of goods.
What is the Geddo definition of quantitative restrictions?
“measures which amount to a total or partial restraint of imports, exports or goods in transit”
In Henn and Darby [1980] what was the example of a quantitative restriction?
Ban on import to the UK of obscene and indecent materials was a quantitative restriction and prohibited under Art 34 TFEU.
How can you justify quantitative restrictions?
With reference to Art 36 TFEU derogation grounds
What is the Dassonville definition of a MEQR?
“All trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-[Union] trade”
Which case supports the suggestion that a MEQR need only potentially hinder trade to contravene Art 34 TFEU?
Foie gras.
Which case supports the idea that there is no de minimis rule of a MEQR?
Ditlev Bluhme - Danish prohibition of keeping only brown bees on Læsø island was MEQR even though small territory.
What rules enacted by MS can be a MEQR?
- national rules/laws
- national regulations/acts
- administrative provisions
- administrative practices
In which case were remarks by the Finnish minister on the safety of vehicle lifts made in Italy held to be part of state policy?
A.M.G - COS.MET
In which case was a non-public body, supported by the Irish gov, where members appointed by gov, financed by gov and aims and campaigns defined by the gov held to be part of the state?
Commission v Ireland (Buy Irish)
What did the case of Apple and Pears Development Council show?
Non-public body financed by the gov held to be part of the state.
Cannot disparage goods solely on origin, but can give focus to qualities or features of particular products even if typical of national production.
In which case did a private standardisation board that certified pipes for sale become classified as part of the state because needed certificate to sell in Germany?
Fra.bo
Which case established that a MEQR cannot be construed as a marketing strategy adopted by private parties as they do not have sufficient power to restrict the free movement of goods principle?
Sapod Audic
In which case was it held that MSs are responsible for the actions taken by private bodies that obstruct the free movement of goods?
Commission v France (Spanish Strawberries)
What are distinctly applicable rules?
Ones that impose a different burden on domestic and imported products, which discriminate against imports. E.g. Commission v Irish (Buy Irish), or requiring import licence.
Can distinctly applicable rules be justified?
Yes, only under Art 36 derogations.
If there is no justification for a distinctly applicable MEQR then what should a MS?
Get rid of the procedure.
What are indistinctly applicable rules?
Ones that have seemingly neutral criteria but on application there is the same burden in law on domestic and imported ones, but different burden in fact.
What are the two important principles established in Cassis de Dijon?
mutual recognition
mandatory rules justification (rule of reason) for additional justification of indistinctly applicable rules
In which case, was an indistinctly applicable MEQR that did not respect the mutual recognition principle held to apply because of a Belgian requirement that margarine be sold in cube-shaped packages to distinguish it from butter?
Rau
In which case was the mutual recognition principle applied to the prohibition of the sale of beer that did not meet German beer purity rules?
Commission v Germany (beer purity rules)
What are the mandatory rules justification under Cassis?
Restrictions are allowed for indistinctly applicable measures if they can satisfy certain mandatory requirements (non-exhaustive list):
- effectiveness of fiscal supervision
- protection of public health
- fairness of consumer transactions
- defence of the consumer
In which case was the protection of the environment an appropriate justification for an indistinctly applicable MEQR requiring the sale of drinks in reusable containers?
Commission v Denmark 302/86
In which case were socio-cultural characteristics of a country a mandatory rule justification under Cassis to allow the indistinctly applicable measure of Sunday trading restrictions?
Stoke-on-Trent City Council v B&Q plc
Under the mandatory rules justifications what other principle must you remember to apply?
Proportionality
What did the court establish in Keck?
A presumption of legality of selling arrangements so long as:
- they apply to all traders
- they affect in the same manner in law and in fact imported and domestic products
What is the definition of a selling arrangement?
“Provisions concerning…the place and times of sale…advertsing…marketing methods”
Karner
In which case was a rule requiring milk for infants to be sold only in pharmacies a selling arrangement, and so did not breach Art 34 as it was not discriminatory?
Commission v Greece C-391/92
In which case, was it ruled that a ban on the product name that implied medical connotations was contrary to Art 34 as it meant the firm had to have a different marketing strategy to penetrate the German market?
Clinique
In which case, was a ban on the selling arrangement of TV advertising for magazine on dinosaurs held to have a discriminatory effect on importers?
De Agostini
In which case, did a German prohibition on the sale of medical products online contravene Art 34 as it was a significant way to access the German market for importers but only an additional way for pharmacies in Germany?
DocMorris
What is the definition of AG Jacob’s in Leclerc-Siplec recommended market access test instead of Keck selling arrangements?
“all undertakings which engage in a legitimate economic activity should have unfettered access to the whole of the [Union] market, unless there is a valid reason for denying them full access to a part of that market”
Which case about the prohibition of the use of trailers with motorcycles appears to suggest the use of the market access test? Why?
Commission v Italy (Trailers for mopeds)
Considered product requirement as one type of MEQR and measure that hinders access of products. Not a selling arrangement or a product requirement.
Which case confirmed that there are three categories of MEQRs: product requirements, selling arrangements and other measures?
Ker Optika. Confirmed that Keck is still good law.
Do the justifications under Art 36 TFEU apply to distinctly and indistinctly applicable measures?
Yes.
What are the exhaustive list of derogations under Art 36?
- public policy/morality/security
- protection of health, animals, plants
- historical/archaeological value
- industrial/commercial property
In which case was the UK ban on the importation of pornography justified under Art 36 public morality grounds?
Henn and Darby.
MSs have discretion to determine public morality.
What qualification did the CJEU impose on MSs using public morality as a justification under Art 36?
Not accepted if MS does not extend given prohibition to domestically produced products.
Conegate.
What does it mean to say that the justifications under Art 36 must be proportionate?
- measures taken must be suitable to attain ends
- must be necessary
