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Free Movement of Goods Harmonisation - Coggle Diagram
Free Movement of Goods
Harmonisation
= positive integration
Commmon EU rules for all MS
Benefits
avoid transaction costs for operators who operate internationally
avoid‘race to the bottom’
More legal certainty + confidence
(Permits EU-wide protection ‘non-economic interests’)
Levels of harmonisation
Maximum: MS not have other standards than laid down in secondary law
Minimum harmonisation: MS may adopt or retain higher standards
Needs LB
arts.53, 62 TFEU (FoE, FMS)
created services directive
art.114 TFEU (fall back)
Tobacco Advertising
:
must be the genuine aim + obstacles/distortions must be verified (‘mere finding of disparities’ or ‘abstract risks to competition’ not sufficient
where EU leg contributes to
(1) the elimination of likely obstacles to the exercise of the fundamental freedoms
(2) the removal of appreciable distortions of competition which are likely to arise from the diverse national rules
interaction with neg integration = step 0
Is there harmonisation? And if so, does national measure fall within scope of harmonisation/within harmonised area?
NO, check : compliance with TFEU free movement provisions (step 1-3)
:!:If not clear from question or in provided leg, then assume that area is not harmonised
YES, check compliance with harmonisation instrument (Directive, Regulation)
Check whether max or min harmonisation
Max: any deviation = violation
Min: may go beyond within own territory
BUT must respect free movement clause
Unfair Commercial Practices Directive (UCPD)
regulates certain selling arrangements
PRINCIPLE = If rule regulates commercial practice + in B2C relations + for purpose of protecting consumer
check against UCPD (not TFEU)
art.4 max harmonisation
Except
Financial services and immovable prop (art.3(9))
Unsolicited visits (doorstep selling)
Annex: black listed practices: always prohibited
exhaustive list
If not listed: general prohibition on misleading commercial practices (Art. 6-7) + on aggressive commercial practices (Art. 8-9) case-by-case assessment
If not misleading, Fall back open norm: general prohibition on unfair commercial practices (Art. 5)
Example: resale at loss (like in
Keck
)
Euronics
UCPD Max hamonisation
(2) Application
since resale at a loss = general prohibition (no case-by-case assessment of unfair/misleading character)
But not included in ‘black list’ of UCPD can only be prohibited if ‘unfair’ or ‘misleading’ in sense of Art. 5-9 dependent on case-by-case assessment of influence on consumer
Outcome: Resale at a loss cannot as a rule be prohibited by MS (if purpose is consumer protection)
(1) Behaviour is in UCPD scope?
Resale below cost = B2C commercial practice? Yes
No excluded sector? If not for health or safety reasons or other exception. yes
Purpose? IF purpose is (partially) to protect consumer. in scope