Week 1- Barriers to trade Flashcards
Case 8/74 Dassonville [1974] ECR 837
Facts- Requirement for a certificate of origin for certain goods when they’re imported.
Significance- This constituted an MEQR because a certificate of origin was more easily attained by those sellers in a country where they were produced than other sellers selling across the union.
DEFINITION OF AN MEQR GIVEN HERE AS “all trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade”.
Case 1290/78 Cassis de Dijon
Facts- German law prevented import of fruit liqueurs with an alcohol % of less than 25%. The seller from Germany had lawfully manufactured the alcohol in their own country with an alcohol content between 15%-25%.
Significance- In support of the principle of mutual recognition, the court held that products lawfully manufactured in one country cannot be prevented from being sold in another MS because of higher product standards being imposed in that other MS.
Technical standards count as an MEQR; the benefit of allowing free trade in this way is that it allows other MS to remain competitive without having to comply with a range of technical standards across the union.
Mandatory requirements which might justify indistinctly applicable but discriminatory in fact include fiscal supervision, public health and commercial fairness.
Case C-55/94 Gebhard [1995] ECR I-4165 (esp. para. 37)
Facts- Citizen prevented from being a member of the Milan bar.
Significance- A measure preventing the free movement of services or goods will be justified under art 36 or a mandatory requirement if it is PROPORTIONATE.
Proportionality requires:
1) Must be applied in a non-discriminatory manner
2) Must be justified by imperative requirements in the general interest
3) Must be suitable for securing the attainment of the objective which they pursue
4) They must not go beyond what is necessary to achieve the objective pursued.
Cases C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097 (selling arrangements)
Facts- A selling arrangement prevented the undercutting of goods by reselling. It was held that there was no effect on cross-border trade and it was indiscriminate both in law and in fact.
Significance- The rule in Keck has two provisos which bring MS outside of art 34 when implementing rules on pricing arrangements.
1) They must apply to all relevant traders equally operating within the national territory.
2) They affect in the same manner, in law and in fact, the marketing of domestic products and of those from other member states.
Selling arrangements relate to prices, stockists and advertising (although due to the nature of advertising a slightly different approach is undertaken).
Cases C-405/98 Konsumentombudsmannen v Gourmet IP 2001 (selling arrangments)
Facts- Swedish banned advertising of alcohol on radio, TV and in newspapers in an attempt to curb the growing consumption of alcohol.
Significance- This constituted an MEQR because, due to the nature of the Swedish drinking culture, Swedish citizens would turn to Swedish alcohol with which they were more familiar. A lack of exposure to imported products would be discriminatory in fact.
“A complete prohibition on advertising is liable to impede access to the market from other member states more than it impedes access by domestic products, with which consumers are instantly more familiar”.
The prohibition was held to be quite ineffective, and whether or not the prohibition could be justified under proportionality was held to be an issue for the national courts instead.
Case C-239/02 Douwe Egbert 2004 (selling arrangements)
Facts- Ban on references to slimming on food products was introduced in a MS (Belgium)
Significance- Compared to Gourmet IP, a complete prohibition on these references prevented foreign manufacturers/ producers from exploiting effective advertising tactics. Again, it was argued successfully that consumers would be more familiar with domestic products than imported products. It was beyond necessity to impose a complete prohibition on labelling of this kind and would prevent market access in Belgium for products which were not otherwise liable to mislead consumers.
Complete prohibitions on advertising more likely to be unjustifiable MEQR’s (selling arrangements) than a scale prohibition because a scaled prohibition may still allow MS to exploit other means of advertising; a market-specific analysis is useful when the national courts make these assessments.
Case C-333/14 Scotch Whiskey Association 2015 in the context of selling arrangements
Facts- Scotland introduced minimum price per unit for alcohol
Significance- This was an MEQR which was indistinctly applicable but nonetheless discriminatory in fact.
This is so, because the effect of the measure is to subject European Whiskey to higher taxes, therefore raising the price and making it less competitive. Whiskey in Scotland may already cost more to produce and therefore have a higher price, so would be unaffected by the measure. Yet the law itself makes no distinction between whiskeys of different origins, or even between types of alcohol.
The advocate general’s approach was to say that the measure was a selling arrangement which restricted market access for lower priced whiskey manufacturers, even though the Keck approach was framed in the context of discrimination between favourable domestic products versus less favourable imported products. Market access tests don’t look at relativity as between these two groups of goods.
Case c-142/05 Aklagaren v Perry Mickelson 2009
Facts- Swedish restrictions on the usage of jet-skis on certain waterways to reduce the chance of a nuisance being caused.
Significance- Market access test invoked in usage cases which says that any measure which has a considerable influence on the access by a foreign exporter to a domestic market may be considered an MEQR.
There is no relativity comparison between domestic producers and MS exporters, but rather a considerable influence on the behaviour of consumers seems to be enough, even though there is no direct or indirect discriminatory.
Commission v Italy 2009
Facts- Legislation introduced which banned the use of trailers behind motorbikes.
Significance- Held that this constituted an MEQR because it completely prohibited access to that specific market. As there was no demand in existence there was no market. THE TEST IN KECK WAS REFERENCED NEXT TO THE MARKET ACCESS TEST, WHICH SAYS THAT PREVENTING AN EXPORTERS ACCESS TO MARKET WILL RENDER A MEASURE INCOMPATIBLE WITH ART 34.
Art 36 of the TFEU:
usually just applicable to public health protection
“The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”
Art 34 of the TFEU:
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states.
What is the distinction which dictates whether a matter of public policy used to justify an MEQR can be protected solely by art 36 or by both art 36 and mandatory requirements in Cassis?
A distinction must be drawn between laws by MS which are distinctly applicable to certain foreign states (where they explicitly name other MS and impose unilateral regulations against them) and indistinctly applicable laws which are nonetheless discriminatory in fact, owing their EFFECTS.
1) If a measure is distinctly applicable and discriminatory in fact, then it can only be justified by art 36 (usually health measures) so long as they are proportionate (Gebhard).
2) If a measure is indistinctly applicable but discriminatory in fact, then it may be justified either by art 36 or by the mandatory requirements recognised in Cassis, so long as it is proportionate by Gebhard standards.
Case 54-80 Eyssen 1981:
Facts- Netherlands banned a certain additive to cheese which most other MS allowed, as a precaution because there was a lack of research into the effects that large quantities of the additive had on human health.
Significance- This was an MEQR which could be justified in the Dutch market on public health grounds because the MS was empowered and permitted to make set the importance of public health to whatever standard they liked. As a large consumer of cheese, the Dutch took this potential health risk more seriously than others, and thus could provide the necessary proportionate protection which they deemed adequate.
Case C-333/14 Scotch Whiskey Association 2015 with regards to justifications?
Facts- Scottish act introduced minimum price per unit of alcohol for all retailers.
Significance- The domestic court, when assessing whether an MEQR such as the one in contention is justified under art 36, must look at the effect of such a measure and its appropriateness to the legitimate goal pursued. In this case, the MUP of alcohol being raised directly and purposefully increases the price of alcohol to reduce consumption.
The referring court must also assess whether an equally effective but less burdensome (less restrictive of EU trade) measure could be pursued to achieve this legitimate objective. Increasing taxation rather than imposing an MPU may be the solution which would be less restrictive, but this is for the referring court to decide with regard to the facts available to them. This is to be an objective assessment by the referring courts so as to ensure that any marginal gains from another measure are not adopted at the expense of the MS.
Finally, this assessment must be done with all facts and evidence at the date of the ruling and not merely when the national legislature adopted the measure in question
Case 178/84 Commission v Germany 1987
Facts- German law which prohibited certain alcohol producers from labelling their products as Bier where they did not use specific ingredients.
Significance- A review of the MEQR imposed suggested that the additives which replaced the necessary additives for other products in MS labelled as Bier were used without issue, and the ban was disproportionate. There could be no justification for an MEQR under art 36 where a measure does not meet proportionality review, and other methods such as labelling would have been less restrictive to the market for foreign goods.
