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free movement of goods - Coggle Diagram

- - - - public morality
        
        Henn and Darby importing porn banned - ECJ - arbitrary discrimination if goods available in the national territory
        
        Congate ban on import not allowed - manufactured in the UK and sold in over18s shops
      - public policy
        
        Bier ban certain ingredients, not part of a coherent public policy as those ingredients in other products in Germany
        
        Cullet v Centre Leclerc said done to prevent civil unrest - not allowed - can't pander to private interests
      - public security
        
        Campus oil requirement to buy certain amount of oil from refinery within state - wanted to ensure didn't go out of business - could be justified
      - health or life of humans, animals and plants
        
        Commission v UK UK ban on poultry import - not jusitifed on public health grounds (done because domestic producers wanted it, hadn't consulted commission or other MS first) - no actual outbreak of disease in France - real reason was economic to exclude french products for christmas
        
        commission v Ireland - import licence to prevent spread of disease allowed as more evidence provided to justify it
        
        Sandos Muesili ban on important muesli bars for health - uncertain evidence - ban disproportionate - warning label better
        
        San Jose - inspection of imported apples allowed, no charge and real danger of bringing in diseae
        
        2 stages
        
        real purpose behind bmeasure - to protect health and life or disgusied restriction on trade commission v UK
        
        ECJ decide if can invoke restriction when no consensus
        
        protective approach
        
        UK v Commission if scientific evidnce incomplete or uncertain and the nature rule based on objective scientific evaluation and reason grounds of concern - can have provisional safety measures pending more scienific data
      - industrial and commercial property
        
        protect IP rights - copyright, patents, trademark
        
        exhaustion of EU rights
        
        only used once
        
        Deutsche Grammaphone - manugactured records and sold to subsidiary, Metro then sought to resell
        
        Merck v Stephar patent for product in Holland, with consent sold in Italy, no patent proection in Italy - sought to resell goods back to Holland - not allowed use patent to prevent resale
        
        Electrola didn't consent to goods being sold, patent upheld
      - national treasures
      - Commission v Italy grounds are exhautive
        
        other grounds
        
        Belgium ban on import of waste allowed due to environmental protection
    - - Bauhuis v Netherlands strict interpretation
      - Leendert van Vennekom up to national authorities to show actions compliant with article 36 burden of proof
      - Dassonville arbitary discrimination not allowed (ban unless certificate of designation) scotch whiskey
    - - done in least restrictive manner
      - MS are free to choose own methods just because stricter doesn't make it disproportionate - Commission v France
      - commission v france motive can't be protectionist
      - no De Minimis rule
      - Milk Substitutions ban due to less nutrition disproportionate - label better
      - Commission v France lenghtu checks on imported wine, disproportioante, much longer then on french wine - maybe justifiable if minor delay
      - Commission v Denmark requirement to be sold in reusable containers for environemntal reasons - ECJ - accepted in principle but disproportionate as the containers had to be made in denmark
  - - - Commission v Italy goods valued in money
    - - Member States
        
        Commission v Ireland broad includes public authorities - idea of buy Irish introduced by Irish government even if implemented by private body
      - judicial branches Dansk Supermarket
      - EU institutions
        
        measures unfirom, in general interests of EU, intended to promot free movement of goods, restrictive effects, no greater than necessary
      - no horizontal direct effect - van de hare
    - - complete ban on imports
      - quotas - Salgoil
      - certificate or licence requirements
      - inspections (although if charge under 30 or 110)
    - - very broad
        
        Sunday Trading Cases - B&Q
      - look at reality of situation
    - - governments and public actors
      - very broad
    - - distinctly applicable
        
        if addresses or hinders imports only
        
        prohbited
      - indistinctly applicable
        
        if applies to domestic and foreign goods
        
        not defintely prohibited, depends on facts
    - - total or partial restrain of imports, exports or goods in transit
      - if directly discrimination only justfiable under 36 TFEU
      - failure to act can be a restriction commission v france
      - Buy Irish intention to substitute domestic products was a government measure
    - - Dundalk Water - are domestic products given some kind of advantage
      - Dassonville - all trading rules capable directly or iindrectly of hindering inter-member state trade considered to have MEQR
      - Commission v Ireland - buy Irish campaign not allowed
      - inaction - commission v france not stopping protest
      - direct discrimination
        
        Schloh required when importing care to have road worthiness test and charged a fee, already had certificate of conformity
        
        Directive 70/50 - national rules that applied to imports only and made importation more costly, difficult
      - indirect discrimination
        
        Cassis german rule for liquor to be over 25% in alcohol, France usually 15 - 20% - any rules impeding trade need justification by public interest - not in public interest -
        
        B&Q Sunday trading laws - not infringment if justifiable on mandatory requirements
        
        Keck and Mithouard 2 traders selling goods at a loss - ECJ french could restrict - falls outside 34 if applies to all affected traders in national territory - in same effect
        
        commission v Italy banned mopeds towing trailers - ECJ an MEQR - affeced use of product - restricted access to market as lower interest from customers
        
        commission v Portugal window tints banned on windscreen and passengers windows - ECJ - restricted market of product
        
        Gourmet International - Swedish ban on alchol advertising - applied for all products - although impeded access to foreign products as people already familiar with domestic products
      - Schmidberger Austrian protest on motorway linking Austria, Germany, Italy - allowed - protest justifiable limitation (publicised road closures in advance)
- - - - not important, no defence that there was no effect
      - Commission v Italy people want to take treasures out of italy, argued protecting culture, not a legitimate defence
      - Diamondworkers even if motive benign not a defence
      - probhibition absolute
    - - proportionate genuine service
        
        Ford Espana fee has to be proportionate, charge calculated as percentage of value of goods - not proportionate should b based on cost and effort of service
        
        specific benefit to individual
        
        Lamaire compulsory contribution to promotional board, promotional activity to general would benefit industry rather then individual paying
        
        Bresciani if inspections for public health, public purse should finance it
        
        commission v italy stat levy doesn't benefit specific individual, helps general economy - not excuse
        
        commission v Germany can't be imposed purely because crossing border
      - inspections mandated by EU law
        
        Bauthaus has to be specifically required by EU law
        
        fee can't be excessive
        
        commission v germany has to be uniform on all products - 4 criteria
        
        can't exceed actual cost of inspections
        
        inspection obligatory and uniform on all products
        
        prescribed by EU in general interests of the EU
        
        promote free movements of goods
    - - customs duties on imports or charges with equivalent effect
        
        substance more important then name
      - commission v Luxembourg if imposed on imported product, but no similar measure on national product
      - equivalent effect
        
        Commission v Italy any charge big or small and whatever its designation, if its imposed on goods for crossing border - not allowed
  - - - direct
        
        no justification possible
        
        Commission v Italy tax advantage for domestic olive oil, not extended to imported, direct discrimination
        
        Commission v Ireland national prdoucers could defer duty for 3 to 5 qwwka, ECJ - benefit small but direct discrimination
      - indirect
        
        no distinction between domestic and imported goods, but does have a negative impact on imports
        
        justified if part of wider policy
        
        Commission v France lower tax on wine made in traditional way allowed, as encouraged use of poor soil to garm
        
        humblot French motor tax system, dependent on size of engine, no french car at bigger engine rate - discrimatory and protective for french cars
        
        Johnny Walker not similar but competing goods
        
        Commission v UK tax on wine far greater the ntax on bear, not similar but cheaper wine competing - the stamp duty prevented them from competing
      - objective justification
        
        direct
        
        not possible
        
        indirect
        
        tax applied to domestics and imports identically, pursues policy objective complinat with treaties, any different treatment justified, taxnot discriminatory
        
        Chemical Farmaceutici heavier tax on syntethetic alcohol, wanted to limit ethyl as a raw amterial - ECJ - legitiamte choice of economic policy - applied to Italian production
        
        Commission v France sweeet wine vs liqor wine, policy objective of encouragine wine in less fertile regions was justified
        
        any justification probed and examined
      - objective
        
        peaple able to eat or drink products from other MS without financial disincentive
      - commission v belgium tax rate for wine 25% for beer 15%, different not large enought to give protective effect
    - - similar products
        
        formal test
        
        if same statistical classification
        
        economic based test
        
        commission v denmark are products substitutable - do they meet same need or have similar characteristics
        
        alcohol
        
        John Walker and sons - whiskey and fruit wine - not similar - different manugacturing process and alcohol content - other potential factors - objective characteristics - origin, method of manugacture, tase, capable of meeting same need from customers point of view
        
        Roders fruit vs grape wine, similar both wines
        
        substituability
        
        SSNIP - small but significant non-transitory increase in price (small increase in price causes major shift in demand)
        
        commission v france tax on spirits from grain, big impact on whiskey and vodka, France mainly produced spirits from wine or fruit - sufficiently similar and lenient to french products