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Free Movement of Goods 2: Non-fiscal barriers (Mandatory requirements -…
Free Movement of Goods 2: Non-fiscal barriers
Article 34 TFEU - prohibition on quantitative restrictions on imports and all measures having equivalent effect
Who is bound?
Public bodies
Executive
Legislature
Judicial
Quasi-public bodies on which a MS has conferred regulatory powers
R v Royal Pharmaceutical Society of Great Britain, ex parte Association of Pharmaceutical Importers
Does not bind private bodies or individuals
Court of Justice has made it clear that MS cannot circumvent their obligations by relying on a private company
Commission v Ireland ("Buy Irish")
MS will be in breach where they fail to take necessary and appropriate measures to prevent the free movement of goods being obstructed by private individuals
Commission v France ("Spanish Strawberries")
Quantitative restrictions
Geddo v Ente Nazionale Risi - "Measures which amount to a total or partial restraint of imports, exports or goods in transit"
Includes bans - R v Henn and Darby - ban on importaton of pornographic materials into the UK
Includes quotas - International Fruit Company NV v Produktschap voor Groenten - licensing restriction only allowing importants to import a specific quantity
Measures having equivalent effect (MEQRs)
Disguised barriers to trade - considered generously
Directive 70/50 - transitional measure that only applies to pre-EEC Treaty measures - divides MEQRs into two groups
Distinctly applicable - Article 2 - do not apply equally to domestic and imported goods
Additional requirements on imports - Firma Denkavit - required imported goods to have extra certificates
Restricting channels on imports - Dassonville - Belgian rule where certifcate needed to prove where goods came from
Giving preference to domestic goods - "Buy Irish" - goes beyond concept of a "measure"
"Spanish Strawberries" - includes failure to mount criminal prosecutions etc.
Indistinctly applicable - Article 3 - apply equally to domestic and imported goods
Cassis de Dijon - confirmed applicability of Article 34 - articulated presumption of mutual recognition
Mutual recognition - goods lawfully in circulation in one MS can be marketed in other MS - rationale is that prevents dual burden on importer
Dassonville - "All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade"
Article 35 TFEU - similar prohibition to Article 34 in relation to exports
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Prohibits...
Quantitative restrictions
R v Thompson - export ban on silver coins
Distinctly applicable MEQRs
Bouhelier
Reluctant to apply to indistinctly applicable MEQRs
Groenveld - will only apply to measures that have "as their specific object or effect the restriction on the patterns of export and thereby the establishment of a difference in treatment... as to provide a particular advantage"
Sometimes applies - Gysbrechts
Aka that do not apply equally to goods marketed in MS and those being exported from that MS
Increasingly at odds with growing market access approach of Article 34 - more about risking market access than burden now
Article 36 TFEU - derogrations from Articles 34 and 35
Art 36 only
Quantitative restriction
Distinctly applicable MEQR
Art 36 and mandatory requirements
Indistinctly applicable MEQR
Grounds
Public morality
Henn and Darby - allowed - ban on import of pornographic films and magazines - no lawful trade of such goods in UK
Conegate v HM Customs & Excise Commissioners - rejected - "love-love" dolls - same goods could be lawfully manufactured in UK
Public policy - constituted narrowly and only successfully invoked once
R v Thompson - allowed - ban on export of silver coins to protect mint coinage
Cullett v Centre Leclerc Toulouse - rejected - minimum price for petrol
Public security
Campus Oil Ltd v Minister for Industry and Energy - allowed - needed to continue supply of petroleum products
Commission v Greece - rejected - failed to prove their public sector refineries would be unable to dispose of their products on the market at competitive prices without these measures
Cullett v Centre Leclerc Toulouse - rejected
Protection of health and life of humans, animals or plants - most frequent - only applies in absence of harmonised measures across the EU - objective evidence must be provided
Commission v Germany ("Beer purity") - rejected - general ban on additives in beer - used in other MS and founds not to be a threat - disproportionate
Criminal Proceedings Against Sandoz BV - may allow MS to decide degree of protection required if scientific evidence is inconclusive - ban on food containing vitamins in the Netherlands - didn't know what constituted a harmful amount
Commission v UK ("Imports of Poultry Meat") - rejected - must not be disguised restriction on trade - imposed at Christmas following pressure from UK producers
Criminal Proceedings Against Bluhme - allowed to preserve species of bee
Preussen AG v Schleswag AG - applies to health of overall environment
Protection of national treasures
Protection of industrial and commercial property - mainly deals with intellectual property rights etc.
Provided
Not arbitrary discrimination
Henn & Darby
Conegate
No disguised restriction on trade
Commission v UK (Poultry Meat)
Proportionate
Campus Oil
Commission v Greece
Mandatory requirements - "overriding reasons relating to the public interest"
Second principle in Cassis - to be balanced against mutual recognition/proportionate
Walter Rau - rejected - cubic margarine - not proportionate defence of consumer - other ways
Commission v Italy ("Relabelling of Cocoa Products") - prejudicial effect on imports - extra packaging costs
Additional grounds beyond those provided in Treaty - established by Court of Justice
Have also been called "imperative requirements"
For indistinctly applicable MEQRs only - Gill and Andreas
"Buy Irish"
Preussen Elektra AG v Schleswag AG - no extension confirmed
Principles
Effectiveness of fiscal supervision
Protection of public health
Fairness of commercial transations
Defence of the consumer
Not an exhaustive list - more have developed
Protection of cultural activities - Cinethéque SA
Environmental protection - Commission v Denmark (Disposable Beer Cans)
Protection of fundamental rights - Schmidberger
Selling arrangements - rules about who sells the products and when, where and how
Fall within Article 34 where they reduce the volume of imports
Oosthoek - ban on free gifts within a commercial activity
Cinethéque - 1 year ban on sale of videos in France
Torfaen BC v B&Q
Sunday trading hours
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Stoke-on-Trent C v B&Q
Criticisms
Can't be MEQRs because don't place dual burden on imports
Encourages challenges to any rule limiting commercial freedom
Response - Keck & Mithouard test
Product requirements = MEQRs
Mars - promotional wrapper
Familiapress - prize crossword
Selling arrangements = not MEQRs as long as...
Apply to all traders within national territory
Affect imported & domestic products the same in law and in fact
Keck - minimum sale prices - fell outside
Tankstation - limits on opening hours - selling arrangements - fell outside
Punto Casa - Sunday trading hours - fell outside
Failed Keck test
LIBRO
De Agostini
Gourmet International
Herbert Karnar - fell outside