WS 4: Free Movement of Goods

Question 1

Article 26 TFEU

Answer 1

Need to create an “area without internal frontiers” in which the free movement of goods would be ensured.

Question 2

Article 28 TFEU

Answer 2

Prohibition between MSs of customs duties on imports and exports and of all charges having equivalent effect

Question 3

Article 30 TFEU

Answer 3

Customs duties on imports and exports and charges having equivalent effect shall be prohibited between MSs

Question 4

Stages to answering a free movement of goods question?

Answer 4

STEP 1: Introduce the relevant legislation
STEP 2: Is the measure a QR/MEQR or a selling arrangement?
STEP 3: Is the measure distinctly applicable or indistinctly applicable?
STEP 4: Can the measures be justified?
STEP 5: Conclude

Question 5

Article 34 TFEU. What does it say?

Answer 5

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between MSs.

Question 6

Definition of goods?

Answer 6

Anything that can be ‘valued in money’ and are ‘capable of forming the basis of commercial transaction’ (Commission v Italy (Art Treasures) [1968] - Italian law placed a licence system and progressive taxation on exports of items of artistic and historical interests. Commission asked them to abolish this.)

Question 7

What is a quantitative restriction?

Answer 7

Riseria Luigi Geddo v Ente Nazionale Risi [1973] - ECJ defined quantitative restrictions as: “measures which amount to a total or partial restraint of, according to circumstances, imports, exports or goods in transit.”

a. Quota system
b. Outright ban (e.g. ECJ ruled at end of 2001 that France was in breach of EU law by still not lifting ban on imports of British beef)

Question 8

Dassonville [1974] - Facts

Answer 8

Belgium had a rule preventing the sale of products such as Scotch Whiskey without a certificate of authenticity. Trader purchased whisky in France where no such measure existed and so made his own certificate of authority. Trader accused of forging & held by Belgian court to be in breach of the law. Trader says this is a QR. Referred to ECJ. HELD - imports of Scotch whisky from France to Belgium being prejudiced. Easier requirements to meet if they come from original country.

Question 9

Definition from Dassonville of MEQR

Answer 9

All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as MEQRs.

Question 10

Commission v Ireland (Buy Irish Campaign) [1982]

Answer 10

Government argued that Irish Goods Council was a private company and not therefore the state. Argument failed as members of management committee appointed by govt and had public subsidies. Campaign did not actually impede the sale of non-Irish goods in Ireland. However, Article 34 only requires the potential to affect trade.

Non-binding state measures can influence the conduct of traders and be caught by prohibition

Question 11

Commission v UK (Re UHT Milk)

Answer 11

Licensing requirement in order to be imported can be an MEQR. Facts: UK law stated that UHT milk could only be imported into the UK with a licence. HELD - this was MEQR since it could cause delay

AND

Requirement to repackage milk in UK dairies - could only be sold by licenced dealer who had packed milk in a UK dairy - Requirement an MEQR since it led to extra expense and delay which in practice = total prohibition on import

Question 12

Irish Souvenirs [1983]

Answer 12

Requirement that certain goods from abroad have country of origin or word ‘foreign’ = MEQR

Question 13

Origin Marking of Retail Goods

Answer 13

Requirement to Mark origin of product - ECJ believed this would encourage UK consumers to buy UK goods

Question 14

Commission v France (Angry Farmers)

Answer 14

Failure by govt to take action against anti-imports protest. Failure by French authorities to take action against French protesters who were waging a violent campaign against imported goods (intercepting lorries, destroying their cargo etc. HELD - Failure to act was an MEQR)

Question 15

What is a selling arrangement?

Answer 15

Not MEQR as relates not to requirements of goods themselves but to selling arrangements

Question 16

Keck and Mithouard: Under what circumstances will Art 34 not apply to laws on selling arrangements?

Answer 16

so long as:

i. The law applies to all traders; and
ii. The law affects domestic and imported goods in the same way;

Question 17

Punto Casa v Capena

Answer 17

ECJ held that Art 34 had no application where the law related to opening hours

Question 18

Commission v Greece ‘Baby MIlk’

Answer 18

Where it can be sold - law provided baby milk only bought in pharmacies was selling arrangement

Question 19

Hunermund

Answer 19

Restrictions on advertising [Pharmacists prevented from advertising goods outside shops]

Question 20

Leclerc

Answer 20

French ban on fuel ads on French TV - SA because the law affected French fuel in the same manner as imported fuel.

Question 21

Presumptions of selling arrangement can be rebutted: Gourmet International:

Answer 21

Swedish ban on alcoholic drink ads in magazines - MEQR because it adversely affected imports, as people would be more likely to buy Swedish drinks out of habit if ads were not allowed.

Question 22

Presumptions of selling arrangement can be rebutted: Schutzverbrand [2000]

Answer 22

Law requiring Austrian butchers, bakers and grocers selling from mobile shops to have a local permanent. Held to have an adverse affect on importers, made access to Austrian market difficult without big Capex.

Question 23

Presumptions of MEQR

Answer 23

Restrictions on presentation/packaging (Mars case [1995] - Germany argued that Mars wrappers saying ‘10% extra’ took up more than 10% space, therefore misleading to consumers. Mars were made to repackage their bars. This was MEQR.

Clinique case - Germany tried to make Clinique change their name to Linique, arguing that Clinique suggested medical properties - MEQR, not merely selling arrangement

Question 24

PRINCIPLE OF MUTUAL RECOGNITION

Answer 24

From para 14 of Cassis de Dijon - a product lawfully sold in one MS should be free to move and be sold in another MS.

Question 25

How can measures be justified?

Answer 25

Distinctly: By Treaty exceptions (Art 36)
Indistinctly: By Treaty exceptions (Art 36) OR Rule of Reason in Cassis de Dijon

Question 26

Public morality

Answer 26

R v Henn and Darby [1979] - banning imports of porn films to the UK was OK as there was no lawful trade of porn films in the UK, and was up to each emmber state to determine basis of morality. Henn and Darby also argued that there had been an arbitrary discrimination/disguised restriction, although this was dismissed as there was no lawful porn trade in UK.

Conegate v Commissioners of Custom and Excise [1986] - ECJ held UK could not rely on public morality exception, because the items sold were of a type that could legally be produced and sold within the UK.

Question 27

Public security

Answer 27

Must transcend economic needs e.g. ensuring uninterrupted supply of petroleum was a matter of public security (Campus Oil Ltd [1984]) - FACTS: Irish law requiring certain percentage of importers’ petrol requirements to come from state run refinery. Said was on public security grounds. Campus Oil said was purely economic. ECJ - petrol of exceptional importance and this policy could be justified.

Question 28

Public policy

Answer 28

The state can protect other interests at the expense of free movement of goods as long as it does so in such a way that is least restrictive to free movement of goods.

Commission v France (Angry Farmers) - french govt tries to rely on pub policy exception. Say if they try and stop, worse riots will break out. Unsuccessful as had allowed situation to go unchecked for years

Question 29

R v Thompson [1978]

Answer 29

Ban on export of gold and silver collector’s coins imposed by the UK. ECJ agreed that export ban could be justified for pub policy reasons. belived coins would be melted down. ECJ confirmed that a State had a genuine interest in protecting its mint coinage from destruction.

Question 30

Eugen Schmidberger v Austria [2003]

Answer 30

Environmental protest group after giving advance notice to Austrian authorities, staged demonstration which resuulted in the closure of the mortorway for 24 hours. Austrian authorities gave advance notice to Germany and Italy. Schmidbergere road haulage said t had breached Art 34 and claimed damges under state liability. HELD - can protect other interests, e.g. freedom of movement at expense of free trade so long as done in way which is least restrictive of free movement.

Question 31

Protection of Industrial and commercial property (IPRs). What have the court been prepared to do due to the spirit of the treaty.

Answer 31

IPRs could be capable of falling within Art 34 TFEU. But 36 exempts them from prohibition, and Art 345 TFEU says property ownership falls outside the scope of TFEU. However, due to the spirit of the treaty. The court have been careful not to over-extend the protection given to IPRs in Article 36 TFEU. It is possible to protect existence of IPR by national measure, but not how it is used or exercised.

Question 32

Deutsche Grammophon v Metro-SB-Grossmarkte [1971]

Answer 32

German copyright laws used to prevent sale of records which had travelled from Germany to France and were then re-imported into Germany. German copyright laws held to contravene what is now Art 34.

Question 33

Final line of Article 36, what is it trying to prevent?

Answer 33

Commission v UK (Newcastle Disease) - To stop states claiming they are relying on one of the grounds, when really they are protecting national industry

Question 34

Preussenelektra v Schleswag [2001]

Answer 34

AG Jacobs suggested even directly discriminatory measures should be justifiable on environmental grounds. ECJ did not change the rules, but allowed the national measure to be justified on environmental grounds.

Question 35

What is the rule of reason (cassis)?

Answer 35

a restriction will be acceptable if it is necessary to fulfil a mandatory requirement of the state. Rule of reason rebuts principle of mutual recognition.

Question 36

Mandatory requirements are?

Answer 36

Fiscal supervision
Fairness of commercial transactions
Consumer protection
Public health

And subsequently:

Protection of culture - banned sale and hire of videos of films within year of release (Cinetheque case)
Protection of environment (Commission v Denmark (Disposable Beer cans)

Question 37

What is preferred to justify an indistinctly applicable measure, Cassis or Art 36?

Answer 37

Article 36 if possible

Question 38

Both distinctly and indistinctly applicable measures must be proportionate. What are the two aspects?

Answer 38

a. Necessary for the objective; and does not go beyond what is necessary. Commission v Germany (Re Beer Purity Laws) [1987]
b. Walter Rau Lebensmittelwerke - Belgian law requiring margarine to be repackaged in cube-shaped containers to allow buyer to distinguish between butter and margarine. Rule was indistinctly applicable. Justification consumer protection. ECJ - disproportionate. Clear labelling would suffice.

Question 39

What is the rule of reason (cassis)?

Answer 39

a restriction will be acceptable if it is necessary to fulfil a mandatory requirement of the state. Rule of reason rebuts principle of mutual recognition.

Question 40

Mandatory requirements are?

Answer 40

Fiscal supervision
Fairness of commercial transactions
Consumer protection
Public health

And subsequently:

Protection of culture - banned sale and hire of videos of films within year of release (Cinetheque case)
Protection of environment (Commission v Denmark (Disposable Beer cans)

Question 41

What is preferred to justify an indistinctly applicable measure, Cassis or Art 36?

Answer 41

Article 36 if possible

Question 42

Both distinctly and indistinctly applicable measures must be proportionate. What are the two aspects?

Answer 42

a. Necessary for the objective; and does not go beyond what is necessary. Commission v Germany (Re Beer Purity Laws) [1987]
b. Walter Rau Lebensmittelwerke - Belgian law requiring margarine to be repackaged in cube-shaped containers to allow buyer to distinguish between butter and margarine. Rule was indistinctly applicable. Justification consumer protection. ECJ - disproportionate. Clear labelling would suffice.

Question 43

What is the rule of reason (cassis)?

Answer 43

a restriction will be acceptable if it is necessary to fulfil a mandatory requirement of the state. Rule of reason rebuts principle of mutual recognition.

Question 44

Mandatory requirements are?

Answer 44

Fiscal supervision
Fairness of commercial transactions
Consumer protection
Public health

And subsequently:

Protection of culture - banned sale and hire of videos of films within year of release (Cinetheque case)
Protection of environment (Commission v Denmark (Disposable Beer cans)

Question 45

What is preferred to justify an indistinctly applicable measure, Cassis or Art 36?

Answer 45

Article 36 if possible

Question 46

Both distinctly and indistinctly applicable measures must be proportionate. What are the two aspects?

Answer 46

a. Necessary for the objective; and does not go beyond what is necessary. Commission v Germany (Re Beer Purity Laws) [1987]
b. Walter Rau Lebensmittelwerke - Belgian law requiring margarine to be repackaged in cube-shaped containers to allow buyer to distinguish between butter and margarine. Rule was indistinctly applicable. Justification consumer protection. ECJ - disproportionate. Clear labelling would suffice.