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EU Law > W4 Art 34 Free Movement of Goods > Flashcards

W4 Art 34 Free Movement of Goods Flashcards

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1
Q

Issues covered so far

A

Competencies, subsidiarity, proportionality
Judicial challenges and remedies
Direct effect and supremacy
Free movement of goods and quantitative restrictions

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2
Q

Art 34 PBL Structure

A
  1. Is there a cross-border element?
  2. Can our claimant rely on Art 34?
  3. Is it a good? (i.e. is it detectable with one of the 5 senses)?
  4. Is it a QR? i.e. numerical limitation on imports
  5. If not, is it an MEE (measure with equivalent effect)?
  6. If yes, what is the type/nature of rule? Product, selling, or use?
    a. If product, go to justification
    b. If the rule is a selling arrangement (as opposed to a product specification):
    i. Does it apply equally in law and fact? If yes, then considered non-infringing
    ii. If not equal in law and/or fact, then needs a justification
    c. If the rule is a use restriction, then apply market access test. If it restricts market access, find justification. If does not restrict market access, then non-infringing.
  7. Acceptable and proportional justification – Article 36 includes acceptable justification (public interest, public health, etc) and there’s also a non-exhaustive list from case law (overriding requirement in the public interest)
    a. Identify justification
    b. Is it distinctly (discriminates on the face of it) or indistinctly (doesn’t apparently discriminate) applicable?
    i. If distinctly applicable, then requires an Art 36 justification.
    ii. If indistinct, then justification can be from Art 36 or from case law, i.e. anything that’s a mandatory requirement (i.e. any non-economic general interest of the state, e.g. consumer protection).
    c. Is it proportionate to the purpose? Necessary, suitable, and legitimate aim/not excessive.
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3
Q

What are the four fundamental freedoms?

A

1) Workers
2) Establishment and Services
3) Capital
4) Goods

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4
Q

Is the EU a fiscal union? Why or why not?

A

It is not a fiscal union. MS retain their own budgets and the EU does not have direct taxation power.

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5
Q

Do the EU treaties provide for an internal or external single market?

A

Both - the internal dimension prohibits charges and taxations within the bloc and the external dimension establishes a common customs and commercial policy.

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6
Q

Article 3(3) TEU

A

Establishes the internal market and its goals

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7
Q

Article 26 TFEU

A

Establishes free movement within the internal market, and the four fundamental freedoms

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8
Q

Article 30 TFEU

A

Prohibition on Customs Duties and Charges of Equivalent Effect [within the internal market]

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9
Q

Article 110 TFEU

A

Prohibition of internal discriminatory taxation

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10
Q

Articles 28,29,31,32 TFEU

A

Common Customs Tariff (external dealings with single market)

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11
Q

Articles 206-207 TFEU

A

Common Commercial Policy

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12
Q

What is the definition of a good?

A

Officially: products which can be valued in money and which are capable of forming the subject of commercial transactions” - Commission v Italy

Unofficially: Must be detectable with the senses

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13
Q

What is a customs duty?

A

A Charge levied on goods by a Member State for the reason that those goods cross a frontier between Member States.

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14
Q

What is a charge having equivalent effect?

A

Any charge imposed unilaterally on domestic or foreign goods by reason that they cross a border, even if it is not imposed for the benefit of the MS, is not discriminatory or protective or if the product is not in competition with any domestic product.

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15
Q

What are the permitted justifications for customs duties and charges having equivalent effect between MS?

A

There are none (applicable to goods - there are a few narrow exceptions for services and inspections)

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16
Q

What are the requirements for national taxation under Art 110 TFEU?

A

National taxes must not discriminate against imported products

National taxes must not afford indirect protection to domestic products

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17
Q

Art 34 TFEU

A

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States

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18
Q

What is a quantitative restriction?

A

A numerical limit (including an outright ban) which affects the import of a product.

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19
Q

What is a measure having equivalent effect?

A

Any measure enacted by a MS capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.

Authority: Dassonville

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20
Q

Dassonville

A

Facts: French company imports whisky from the UK, re-labels it, and exports it to Belgium. Belgian law requires a certificate of origin, the whisky didn’t have one, so were prosecuted under Belgian law. CJEU ruled it was a measure with equivalent effect.

Significance: Defines measures with equivalent effect.

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21
Q

What are the criteria for an Art 34 breach?

A

1) The measure must be attributable to a MS
2) Must be capable of hindering trade, i.e. anything impacting the volume of trade
3) There must be an intra-EU element

22
Q

Cassis de Dijon

A

Facts: German law required Cassis to be at least 23% ABV, regardless of origin. French Cassis is traditionally 20%, so even though the law was not directly discriminatory, it did have an exclusionary effect.

Significance: Indistinctly applicable national rules can be MEEs. Also establishes principle of mutual recognition.

23
Q

What is mutual recognition?

A

The default presumption is that if something is lawfully sold in one MS, then they should not be prevented from entering the market in other member states. Can be rebutted with Dassonville mandatory requirements or Art 36 TFEU justifications.

24
Q

Welsh Sunday Trading case

A

Facts: In Wales, no sales on a Sunday. Action was brought as it was an MEE. Was allowed for “socio-cultural” justification so long as it’s proportionate. English/Welsh courts asked to use “reasonable” instead, but CJEU said no.

Significance: “Proportionate” not “reasonable”. Also an example of an indistinct/non-discriminatory measure being an MEE.

25
Q

Keck

A

Facts: Keck was reselling goods at a loss, contrary to French law. Invoked Art 34 as a defence, to say that the French law was an impediment to free movement. Ruled as falling outside the scope of Art 34.

Significance: Established the “Keck Test/Keck Exemption” for selling arrangements. If the national rule is 1) a selling arrangement, 2) affecting all traders regardless of MS, and 3) is applied equally in law and in fact, then the national rule falls outside the scope of Art 34.

26
Q

What is a product requirement?

A

Something which requires a change at the production stage

27
Q

What is a selling arrangement?

A

Something which affects the arrangements under which products may be sold, including marketing

28
Q

What is a use restriction?

A

Something which affects conditions under which consumers may use the product

29
Q

De Agostini

A

Facts: Italian company launches a new kids magazine and advertises EU-wide on TV. Breaks Swedish law as can’t advertise anything targeted at children. Italian company argues the ban breaches Art 34. Swedish government argues that it applies equally in law and in fact. CJEU concluded that banning TV advertising made it more difficult for non-Swedish products to break into the market, so was discriminatory in fact. As such, could not rely on Keck exemption.

Significance: Illustration of an MEE/selling arrangement applying equally in law but not in fact.

30
Q

Commission v Italy (Mopeds)

A

Facts: Italian ban on using tailers with mopeds/motorbikes. Commission said it was a MEE, but Italy argued it wasn’t a ban on selling, just on use. CJEU ruled that use restrictions affect consumer purchasing behaviour (why would you buy something you couldn’t use?) so it was an MEE and required justification.

Significance: Example of use restrictions and establishment of the market access test

31
Q

What is the market access test?

A

Does the national rule have the effect of hindering access to that MS’ market? Applies to use restrictions.

Authority: Commission v Italy (Mopeds)

32
Q

How can a MS justify a breach of Art 34?

A

By using either Article 36 justifications (exhaustive list) or the Cassis de Dijon “mandatory requirements”/case law

33
Q

What are the justifications allowed by Art 36?

A

Public morality, public policy, public security.
Protection of health/life of humans, animals, plants.
Protection of national treasures.
Protection of industrial/commercial property.

34
Q

What is the proportionality test?

A

National measures must be 1) suitable to achieve their objective and 2) not go beyond what is necessary to achieve the objective.

35
Q

Walter Rau

A

Facts: Belgian law requires margarine to be sold in cubes, to distinguish it from butter. This is a product requirement MEEQR, but Belgium argued a justification for consumer protection. Passed the suitability part of the proportionality test but not the necessity part - same objective could be achieved by labelling.

Significance: Example of product restriction and also of use of the proportionality test.

36
Q

Scotch Whisky Association

A

Facts: Minimum Unit Alcohol Pricing in Scotland was set to £0.50/unit. Not an issue for producers of expensive Scotch whisky, but did impact producers of cheap eastern European vodka. Was an MEEQR which was indistinctly applicable, but was discriminatory in fact. Attempted to justify on public health grounds, but failed the proportionality test. Could have changed VAT rules rather than the base price, which would apply to all classes of alcohol.

Significance: Example of proportionality test

37
Q

Establishes the internal market and its goals

A

Article 3(3) TEU

38
Q

Establishes free movement within the internal market, and the four fundamental freedoms

A

Article 26 TFEU

39
Q

Prohibition on Customs Duties and Charges of Equivalent Effect [within the internal market]

A

Article 30 TFEU

40
Q

Prohibition of internal discriminatory taxation

A

Article 110 TFEU

41
Q

Common Customs Tariff (external dealings with single market)

A

Articles 28,29,31,32 TFEU

42
Q

Common Commercial Policy

A

Articles 206-207 TFEU

43
Q

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States

A

Art 34 TFEU

44
Q

Facts: French company imports whisky from the UK, re-labels it, and exports it to Belgium. Belgian law requires a certificate of origin, the whisky didn’t have one, so were prosecuted under Belgian law. CJEU ruled it was a measure with equivalent effect.

Significance: Defines measures with equivalent effect.

A

Dassonville

45
Q

Facts: German law required Cassis to be at least 23% ABV, regardless of origin. French Cassis is traditionally 20%, so even though the law was not directly discriminatory, it did have an exclusionary effect.

Significance: Indistinctly applicable national rules can be MEEs. Also establishes principle of mutual recognition.

A

Cassis de Dijon

46
Q

Facts: In Wales, no sales on a Sunday. Action was brought as it was an MEE. Was allowed for “socio-cultural” justification so long as it’s proportionate. English/Welsh courts asked to use “reasonable” instead, but CJEU said no.

Significance: “Proportionate” not “reasonable”. Also an example of an indistinct/non-discriminatory measure being an MEE.

A

Welsh Sunday Trading case

47
Q

Facts: Keck was reselling goods at a loss, contrary to French law. Invoked Art 34 as a defence, to say that the French law was an impediment to free movement. Ruled as falling outside the scope of Art 34.

Significance: Established the “Keck Test/Keck Exemption” for selling arrangements. If the national rule is 1) a selling arrangement, 2) affecting all traders regardless of MS, and 3) is applied equally in law and in fact, then the national rule falls outside the scope of Art 34.

A

Keck

48
Q

Facts: Italian company launches a new kids magazine and advertises EU-wide on TV. Breaks Swedish law as can’t advertise anything targeted at children. Italian company argues the ban breaches Art 34. Swedish government argues that it applies equally in law and in fact. CJEU concluded that banning TV advertising made it more difficult for non-Swedish products to break into the market, so was discriminatory in fact. As such, could not rely on Keck exemption.

Significance: Illustration of an MEE/selling arrangement applying equally in law but not in fact.

A

De Agostini

49
Q

Facts: Italian ban on using tailers with mopeds/motorbikes. Commission said it was a MEE, but Italy argued it wasn’t a ban on selling, just on use. CJEU ruled that use restrictions affect consumer purchasing behaviour (why would you buy something you couldn’t use?) so it was an MEE and required justification.

Significance: Example of use restrictions and establishment of the market access test

A

Commission v Italy (Mopeds)

50
Q

Facts: Belgian law requires margarine to be sold in cubes, to distinguish it from butter. This is a product requirement MEEQR, but Belgium argued a justification for consumer protection. Passed the suitability part of the proportionality test but not the necessity part - same objective could be achieved by labelling.

Significance: Example of product restriction and also of use of the proportionality test.

A

Walter Rau

51
Q

Facts: Minimum Unit Alcohol Pricing in Scotland was set to £0.50/unit. Not an issue for producers of expensive Scotch whisky, but did impact producers of cheap eastern European vodka. Was an MEEQR which was indistinctly applicable, but was discriminatory in fact. Attempted to justify on public health grounds, but failed the proportionality test. Could have changed VAT rules rather than the base price, which would apply to all classes of alcohol.

Significance: Example of proportionality test

A

Scotch Whisky Association

EU Law (11 decks)

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