W4 - Free Movement of Goods Flashcards
Internal Market
Art 26 TFEU - ‘area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’
Single European Act 1992 - principles of mutual recognition (‘any product legally manufactured and sold in one MS must be allowed to be placed on the market in all others’)
Legislation
Primary = Art 34 - ‘quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between MSs’
Secondary =Harmonisation Directives (provisions are governing and once in place MSs have to allow goods that comply with it into their territory UNLESS one of the things in art 114(4) or 114(5) apply:
114(4) - deals with pre-existing MS national law (justified under art 36 or protection of the enviro => may be able to maintain their national law)
114(5) - deals w situations where MS deems it necessary to introduce new provisions (only allowed in v limited circumstances eg if based on new scientific evidence in relation to protection of the enviro on grounds of a problems specific to that MS)
BUT possible for national leg to implement stricter guidelines than the directive if result is on their own products (reverse discrimination; Gallaher)
Goods?
Art Treasures:
- Valued in money
- So capable of forming the basis of commercial transactions
Art 34
Prohibits:
- Quantitative restrictions on imports (Geddo)
- Measures having equivalent effect (Dassonville)
Dassonville: ‘all trading rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially, intra Community trade’ =>
- Enacted by MS (law or rule enacted by public body; Buy Irish)
- Potentially hindering (usually time or money)
- Cross border element
National laws capable of being MEQRs
- requirement of a licence a MEQR (also mutual recognition- UHT Milk)
- repackaging MEQR (UHT Milk)
- origin marking an MEQR (Origin Marking; Irish Souvenirs)
- failure to act may be an MEQR (Angry Farmers) as state must provide enough resources to fulfil its obligations
How is the MEQR applied?
In order to rebut principle of mutual recognition the measure may be distinctly applicable (apply only to imported goods eg Irish Souvenirs) or indistinctly applicable (apply to all goods but may be more difficult for imported goods to satisfy eg UHT Milk)
(both prohibited under art 34)
Justification of distinctly applicable measures
Art 36 - Treaty exceptions (exhaustive list):
- public security (ensuring oil refineries remained viable - Campus Oil; Arts 346-348; protection of national security eg arms manufacture)
- public morality (each MS set own standards of morality eg porn (Henn and Derby) as long as there was generally no lawful trade in such articles within the MS; Conegate)
- public policy (used for illegal act eg melting coins for gold content- Thompson; Angry Farmers; Schmidberger)
- public health (of humans, animals or plants; UHT Milk)
- protection of national treasures
- protection of industrial and commercial (intellectual property; can not be used to prevent the re-importation of records lawfully sold in another MS - Deustche Grammophon)
‘must not constitute a means of arbitrary discrimination or a disguised restriction on trade between MSs’ - aka correspond to a REAL need (Newcastle Disease)
Protection of the environment/working enviro since added (PreussenElekra)
Proportionate
Fedesa:
- Measure is necessary
- Suitable for the objective
- No further than is necessary in order to achieve it
eg Art 36: UHT Milk v Schmidbeger (balancing fundamental rights eg freedom expression and aim wasn’t to affect trade)
Cassis: Walter Rau (clear labelling sufficient instead of changing packaging- choose less restrictive measure); Beer Purity Laws (scientific basis needed)
Justification of indistinctly applicable measures
Art 36 or Cassis de Dijon approach (‘rule of reason’- non-exhaustive): necessary to satisfy a mandatory requirement of the state (aka legitimate reason in the public interest) also mutual recognition
eg.
- Public health
- Effectiveness of fiscal supervision (eg to ensure that taxes were gathered efficiently and effectively)
- Defence of consumer (eg against misleading advertising or product info)
- Fairness of commercial transactions (eg to ensure that business is conducted properly and equitably)
Extended by ECJ to include:
- Protection of the enviro (Disposable Beer Cans)
- Protection of culture (Cinetheque)
Selling arrangement
- Law relates to circumstances of sale and has nothing to do with changing the product - related to how, when (Sunday trading cases eg Punto casa; B&Q) and where (Processed Milk) you sell it
- Must apply equally in law and fact (Keck); practical impact => MEQR
- Do not contravene Art 34
- Adverse effect on importers => MEQR (eg on requirements to have a permanent base; Schutzverband)
Advertising and selling arrangements
- restriction on circumstances of sale that doesn’t involve altering products (eg advertising outside shops; Hunermund) =SA
- advertising rules that apply to all traders and have same effect = SA (Leclerc)
- Applies to all advertises but affects importers adversely eg without advertising people tend to buy products they are familiar with not new imported products =MEQR (Gourmet International) => does act as a barrier of entry to the market
Product characteristics and selling arrangements
Certain types of law definitely relate to the goods themselves (eg presentation, labelling and packaging) and will => never be selling arrangements
eg product name and repackaging (Clinique; Mars)
Types of selling arrangement
Static - national laws which restrict the hours during which goods may be sold, or the premises from which they may be sold, or the age of persons to whom they may be sold
Dynamic - national laws restricting the way in which goods can be marketed or advertised
