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FM of Goods

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Elizabeth George

on 8 June 2013

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Transcript of FM of Goods

Quantitative Restrictions Geddo and Dassonville:
'National measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit' Defences/Justifications Article 36 TFEU: provides for derogations to the internal market freedoms of Articles 34 and 35 TFEU that are justified on certain specific grounds.
It is EXHAUSTIVE Customs Union Art 28 TFEU establishes it
Art 30 TFEU: Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States
Art 110 TFEU - discriminatory taxes are prohibited Measure Having Equivalent Effect Distinctly Applicable Measures FREE MOVEMENT OF GOODS Art 34 Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
Article 35Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States Henn v Darby (1979)
Ban on hardcore porn in the UK
'Any restriction on the import of goods b/c of their quantity = a QR'
(Protecting domestic products by limiting access of foreign products) 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. Indistinctly Applicable Measures Dassonville (1974):
The most important element determining whether a national measure is caught under Article 34 TFEU is its effect (‘… capable of hindering, directly or indirectly, actually or potentially …’)
:. did not require the discriminatory aspect of a measure to be the deciding factor Directive 70/50/EEC (32) (only applied during the EC transitional period), but did state Commission's intention to catch MEQRs which applied to them equally. Dassonville (1974):
Belgian certificate of origin requirement
D imported whiskey from France, where no certificate was needed + it was harder to obtain one (3rd country origin)
-> All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade = MEQR'
-> Measures =/= disguised restriction on trade (eg formalities)
-> reasonable restraints might NOT be caught by Art 34 Art 34 only applies to a STATE/NATIONAL MEASURE No favoring domestic products Buy Irish (1982) Irish gov't part-funded
'Irish Goods Council' to encourage ppl to 'buy Irish' (through exhibitions, info services, etc) to up 3%
-> 'Although unsuccessful, still part of a gov't programme designed to achieve the substitution of domestic products for imported products
-> comparable to gov't measures of a binding nature
-> 'measure which has the potential to influence the conduct of consumers and traders is an MEQR if it represents gov't action' Apple and Pear Development Council (1982) The Council was an advertising campaign to promote domestic industry
-> discriminatory
-> state funded
-> gov't appointees
:. sufficient connection btw P and State Commission v France (1995) (Angry Farmers) Protests against imported produce by farmers =/= state action
BUT police inaction was
(The lack of proper control was an MEE) Spanish Veal/Stop Live Cows Case UK police was deemed to have appropriately defended/contained the protest No rules on origin marking Commission v UK (Marks of Origin) UK argued that the legislation applied to imported & domestic products was ! b/c (it informed the consumer as to) quality
-> purpose of indications of origin/origin-marking is to enable consumers to distinguish btw domestic and imported products
enabling prejudices
-> origin marketing makes it more difficult
-> *potential* discrimination
-> public procurer cannot be structred so as to favored domestic producer No price fixing No measure making imports costlier Schloh v Auto Control Technique A roadworthy test is not permitted if such a test is not required for domestic products Rules which do not discriminate but nevertheless create barriers Cassis de Dijon (1978)
P wanted to import 'Cassis de Dijon' from F to G
G refused b/c of ban on fruit liquor with < 25% alcohol
-> MSs can regulate marketing/production of alcohol
-> obstacles must be necessary for mandatory reqs
effectiveness of fiscal supervision; public health; fairness of commercial transaction; defence of consumer
arguments of alcohol tolerance are ineffective b/c of domestic weak products
rule of reason
could simply display alcohol
-> principle effect of these reqs = to promote high alcohol content through excluding the products of other MSs
:. obstacle to trade
-> in addition, if the alcohol = lawfully produced & marketed in 1 MS, it should be allowed in others - MUTUAL RECOGNITION
Affirmed Dassonville
But qualified it through the Rule of Reason
allowing certain restrictions if they could meet mandatory requirements
Art 34 could apply to national rules that did not discriminate against important products, but which inhibited trade b/c the rules were different from origin MSs trade rules Ie, unless there is a mandatory requirement (which has been developed to include the 'rule of reason' & 'consumer protection'), there had to be mutual recognition (the 1st rule - common standard based on the country w/ the weakest rules) Weatherill & Beaumont Dual Burden Rules Inside/Caught by Art 34 TFEU Cassis:
Prevents State A from imposing further rules on top of State B's rules (unless there are Mandatory Reqs)
Like Mutual Recognition Equal Burden Rules Outside Art 34 TFEU The rules apply to all goods and have the SAME IMPACT Selling Arrangements Keck & Mithouard (1993)
K&M = prosecuted in French cts for selling goods @ a lower price
-> PURPOSE of national legislation =/= to regulate trade
:. ECJ must see if it was an MEQR
-> Cassis de Dijon held that the mutual recognition principle removes obstacles even if they are applied w/out distinction to all products
-> [16] BUT the application of provisions restricting/prohibiting certain selling arrangements are NOT hindering (directly/indirectly/actually/potentially) trade btw MS
if they APPLY TO & have the SAME EFFECT on ALL traders
-> such rules = outside Art 34
-> :. Art 34 doesn't apply to the rule imposing a general prohibition on resale at a loss (b/c not by nature applied to prevent access to the market or to impede access any more than it impedes the access of domestic products Weatherill & Beaumont would find that Keck & Mithouard [16] is based on the distinction btw dual and equal burden rules It would most likely have encompassed: Torfaen v B&Q (1988)
-> Sunday trading rules applied to both imported & domestic rules
-reduction in turnover affected all goods equally
-> reflected socio-cultural characteristics (fulfilled mandatory req from CASSIS)
-must be ascertained that the measures = necessary to achieve the aim
-> Art 34 doesn't apply to Sunday trading rules b/c restrictions do not exceed intrinsic effects of the rule
:. outside Art 34 Oebel
A rule restricting the wholesale delivery of bakery products to consumers & retailers @ night
Was not caught b/c it applied to all producers in the same way wherever they were established Cinetheque (1984)
France banned sale/hire of videos during the 1st yr of release
so that ppl would go to the cinema
-> sought to encourage the creation and showing of films irrespective of origin
-> :. justified Schmidt (2004)
Ban on doorstop-selling of silver jewelery was OUTSIDE art 34 Tankstation (1994)
National rules laying down max # of opening hours + compulsory closure periods
-> a CSA :. OUTSIDE Art 34 C&DB:
SAs (Kecks [16]) Dynamic (same law; diff facts)
(affects marketing)
relates more to the definition of the product itself Static (same/same)
eg hrs of work 1. Affecting the product itself :. under Art 34 Familiapress (1995)
newspaper crossword prize = prohibited by Austrian legislation
-> Although the national legislation = directed against a method of sales promotion, it bore 'on the actual content of the product'
-> 'not an SA'
-> required traders established in other MSs to alter the contents of the periodical
(impairing FM)
:. MEQR and WITHIN Art 34 Commission v Greece (Processed Milk for Infants) (1992)
infant processed milk could only be sold in pharmacist's shop
equal burden in domestic and imported products
:. not discriminatory 2. Differential impact in [law &] fact [16 of Keck] Konsumentombudsnannen (KO) & Gourmet Int'l (1998)
Sweden Consumer Ombudsman sought an injunction restraining Gormet Int'l products from placing alcohol adverts in magazine
-> Keck [17] SAs =/= prevent access to the market OR impede access any more than of domestic products
-> Ct concluded that it impedes access to imported products more than domestic products
:. obstacle
[21] - domestic product = more failure to consumers
it was an SA but not proportionate Heimdienst
Bakers, butchers, grocers weren't permitted to make rounds by Italy
Due to health concerns
-> Art 34 precluded a restriction
-> a more PROPORTIONATE solution is to have refrigerated vans
-> ensuring hygiene to outlying areas De Agostini (1997)
Swedish law banning adverts for products for children under 12
-> outright ban might affect imported goods more than domestic ones
-> if TV advertising = the only effective promotion method enabling penetration of the Swedish market
-SAs may thus incl. rules that restrict the possibilities of advertising Franzen (1997)
Swedish law required licences for wholesale alcohol firms
-> such licenses = mostly granted to Swedish firms
:. the rule applied differently in fact to foreign products Prevent or substantially hinder Market Access 1. falls w/in Dassonville - hindering trade
2. but it isn't an SA.
3. nor is it about the environment, etc
:. there has been a FURTHER EXTENSION Commission v Italy (TRAILERS) (2005)
Restriction on motorcycle trailers in Italy (not on trade/sale, but on use
-> not a product requirement, but it did have an impact on trade
-> any measuring hindering access of a product = an MEQR - (Market Access Test)
-> All trading rules capable of hindering trade = prohibited
+ principles of non-discrimination, mutual recognition, FM
In the absence of harmonisation of national legislation, obstacles to the FM of goods which are the consequences of applying rules laying down requirements to be met by goods coming from other MSs where they are lawful = MEQRs
=> unless they apply in law & in fact to domestic products equally
=> Measures adopted = MEQR if treated imports less favorably
:. caught by Art 34
BUT in this case there was an objective justification (road safety) Mickelsson and Roos (2005)
Restriction on use of personal watercraft in many Swedish waterways
-> measures taken to treat imports less favorably = MEQRs
-> such restrictions limit consumer's interests in buying that products (Trailers [57])
:. caught w/in Art 34
BUT in this case protection of the environment justified the rule (b/c why would so import products if they're of no use w/in the MS? R (Countryside Alliance) v HM AG (2007)
Ban on hunting dogs
=/= a trading rule (KECK) nor a product rule (CASSIS)
BUT under Trailers it would've been a Market Access test and seen as a use activity restriction We could use MA test and get rid of Keck and Cassis
Trailers says that the key Q = the measure's access to market
redefining Dassonville (hindering MA)
'Objective justification' = different from proportionality
less harsh
:. unless there is an objective justification, it is w/in Art 34 Weatherill:
Keck placed too much emphasis on factual and legal equality
at the expense of MA
Denied that rules of SA came w/in Art 34 if they didn't discriminate
Ignored the ! of MA
National measures that applied equally in law
National measures that applied equally in law & in fact to all goods & services w/out reference to origin & which imposed no substantial/direct hindrance to the ACCESS of imported goods/services to the market of that MS should not be caught by Art 34 and 36 TFEU Barnard:
Access to Market test has more sophisticated framework
Non-discriminatory measures which directly and substantially impede access to the market (incl. the extreme case of preventing access altogether) breach the Treaty provision
unless justified by a public interest ground or an express derogation (& are proportionate)
Non-discriminatory measures which do not substantially hinder access to the market the ct will say that either the impediment is too uncertain & remote that it has no effect
:. no breach
:. restrictions for environment reasons can be dealt w/ adequately
b/c they're not selling arrangements
BUT aren't discriminatory nor do they hinder access
same w/ opening hours
they merely curtail access to the market Spaventa:
Is MA in fact the overarching principle for FM of goods? Barnard: Market Access: Meaning & Application
No rigid distinction btw static & dynamic SAs
Cts may have to consider the range of goods affected, existence of alternative SAs & the nature of the restriction itself
In FM of goods there is no ready consensus on what constitutes the MA test Snell:
If the concern is that imported goods are more affected, then
we should merely speak in terms of discrimination (factual, legal, or indirect)
MA adds little to such analysis
MA could collaps into anti-protectionism & affect commercial freedom
MA =/= well defined
can fall btw anti-protectionism + economic freedom Mandatory Requirements If the measure results in the same burden in law and a different one in fact, mandatory requirements can justify it
ie for indistinctly applicable, dynamic CSAs + hindering MA
but they MUST BE PROPORTIONATE Cassis de Dijon:
minimum alcohol req wasn't proportionate
Introduced 'mandatory requirements' as 'justification' <- IF the measure is applied equally Deserbais (1988)
Edam cheese in G must have 34.3% fat, but F required 40%
Incompatible w/ Art 34 & not saved by mandatory reqs Gilli & Anders (1980)
Importer of apple vinegar from G to Italy = prosecuted 4 fraud
They sold vinegar in Italy not made from the fermentation of wine
The rule hampered Community trade
+ didn't benefit from mandatory reqs b/c proper labelling could avoid consumer confusion Walter Rau v de Smedt (1981)
Margarine supplied into Belgium in 'truncated-cone', not 'cone-shaped' tubs
B argued that this would be useful for partially sighted customers
-> clearly more difficult for non-Belgian manufacturers to comply w/out incurring cost increases
-> Art 34 = applicable
confusion can be avoided with clear labelling Danish Bottles (1986)
Danish req that all beverages be sold in 'approved' glass bottles
No discrimination, but it had to be Danish bottles b/c of their reuse scheme
it was difficult to weigh mutual recognition and FM with the environment
-> not justified b/c of technical reasons Eugen Schmidberger v Austria (2000)
balancing FM of goods & environment & assembly
environmental protest blocking transport links
lasting 4 days including bank holiday
-> breach by Austria Henn v Darby (1979)
UK ban on import of porn - although domestic law didn't ban the possession of such material
Purpose = to restrain porn & :. no lawful trade in such goods w/in the UK
-> ban = allowed
'In principle, it is for each MS to determine, in accordance w/ its own scale of values & in the form selected by it, the requirements of public morality in its territory ' Art 36 Beer Purity (1986) (Consumer Protection)
Reinheitsgebot limiting 'beer' to only 4 ingredients (from 16th c)
:. Belgian raspberry beer =/= beer
Products traditionally marketed as beer couldn't be sold in G as beer
-> disproportionate
could simply require an ingredients list
that would protect the G consumer
no need to ban the word 'beer' Simmenthal (1976)
Even if a legitimate public interest can be found to justify a national measure, restrictions on the free movement of goods will be subject to a proportionality test. The Court has insisted that national laws authorized by Article 36 “only comply with the Treaty insofar as they are justified, that is to say, necessary for the attainment of the objectives referred to by this provision” Strictly construed - must pass proportionality test Eg if UK finds it offence but the Netherlands does not, it is still allowed Conegate v Customs & Excise (1985)
Qualified Henn v Darby
UK ban of 'Love Love Dolls' from G was inconsistent w/ domestic law
dolls could be sold in the UK in licensed shops
Lawful, but restricted
-> Although MS may have discretion, the mere fact that goods cause offence =/= enough to justify restrictions on the FM of goods if the MS doesn't adopt domestic rules
'no grounds of public morality to prohibit import when no such domestic prohibition' exists
UK had no absolute prohibition on manufacture & marketing domestically
:. no really offensive to public morality
-> it was a 'means of arbitrary discrimination or disguised restriction on trade btw MSs Stricter burdens for imports are not permitted Not 'consumer protection' only in limited circumstances Vitamin in Muesli Bars case (1982)
Restriction on added vitamins in muesli bars ('too many vitamins'
'National rules providing for such a prohibition are justified only if authorisation to market are granted when they are compatible w/ the need to protect health'
-> there needs to be a real risk to public health
+ if there is a justification, the measure must be proportionate + Environmental Protection + Cassis exceptions for non-discriminatory rules Protection of consumers
Fairness of commercial transactions
(non-exhaustive list) + pluralism of the press - Familiapress
+ Fostering certain forms of art - Cinetheque
+ Opening hours (socio-culture) - Torfaen
+ Road safety - Commission v Italy + Fundamental Rights Eugen Schmidberger v Austria (2000)
Austria didn't ban an environmental demonstration
this lead to the closure of the Brenner motorway
It was AGAINST Art 34, but JUSTIFIED b/c of freedom of expression & freedom of assembly
An outright ban would've been unacceptable interference w/ fundamental rights of demonstrators Omega Spielhallen v Bundesstadt Bonn (2004)
Prohibition of 'Laserdrome'
b/c it 'played @ killing ppl'
breaching the GG - protection of human dignity
deemed a threat to human dignity - a fundamental value
There was a conflict btw HR and FM
-> prohibition corresponds to the GG protection
-> Ct eventually found BvG could decide for itself -> market access may be easier as then the state must objectively justify the stance Wenneras & Boe
The CJEU in Trailers and Mickelsson & Roos has just consolidated and clarified what was implicit in Keck
namely that Art 34 TFEU prohibits measures that discriminatorily, in law or in fact, restrict MA for imported products or which prevent or hinder MA Tempered wide Dassonville
the mandatory req became a control mechanism (Connor) Humbolt
only 16 volt cars were taxed
but all cars in F < 16, but all imports > 16
:. indistinctly applicable
Potentially justified b/c of environment, but not in this case
'If it could be proved that it didn't discriminate and encouraged environmentally friendly behaviour, permitted'
but it wasn't in this case Ct in Dassonville found that it was too broad
and Cassis reeled it in
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