Loading presentation...

Present Remotely

Send the link below via email or IM

Copy

Present to your audience

Start remote presentation

  • Invited audience members will follow you as you navigate and present
  • People invited to a presentation do not need a Prezi account
  • This link expires 10 minutes after you close the presentation
  • A maximum of 30 users can follow your presentation
  • Learn more about this feature in our knowledge base article

Do you really want to delete this prezi?

Neither you, nor the coeditors you shared it with will be able to recover it again.

DeleteCancel

Make your likes visible on Facebook?

Connect your Facebook account to Prezi and let your likes appear on your timeline.
You can change this under Settings & Account at any time.

No, thanks

EU law - Free movement of goods problem question

A structured approach to answering a typical undergraduate EU law question on the free movement of goods.
by

Matthew J. Homewood

on 21 April 2015

Comments (0)

Please log in to add your comment.

Report abuse

Transcript of EU law - Free movement of goods problem question

This Prezi has been designed to give you guidance on how to answer a typical problem question on the free movement of goods. You should note however, that this is simply one approach of which many are valid.
EU law - answering problem questions on the free movement of goods
Introduction
Final Conclusion
Introductions in problem style questions should be kept to a minimum. The focus should be on addressing the issues raised and the examiner will not be looking to give credit for an over elaborate introduction. However, to simply launch into the issues without some reference to context would be wrong.
Identify the issues...
The Question
Bubbles is a UK manufacturer of shampoo selling throughout several Members States of the European Union. At present, the company does not sell their goods in Poland but has recently decided to concentrate on this untapped market. It has encountered a number of difficulties in doing so.

Firstly, Poland places a limit on the quantity of bathing products which may be imported. Also, Polish legislation for the protection of health requires all shampoos sold in Poland to have a safety cap. Bubbles does not currently use safety caps on their products and are unhappy with the Polish requirement which is not imposed by other Member States.

Furthermore, Bubbles has been informed that when its goods enter Poland, it will have to pay a 2.5 Zloty (about 50p) fee per bottle. Bubbles has been told that the charge is levied for the compilation of statistics.

Bubbles has been informed that because its products use a stick-on label, they will be taxed at a higher rate than those products that print directly onto the bottle. Although the company are aware of a recent report suggesting that stick-on labels have an adverse impact on the environment, it thinks it is a little suspect that none of Poland’s bathing product producers use stick-on labels.

Finally, Bubbles is dismayed to hear that there are restrictions on television advertising of all hair care products in Poland, following a recent incident where a child mistook shampoo for a drinking bottle and suffered serious illness as a consequence.

Advise Bubbles Ltd as to the impact of any relevant EU law.
The question we'll use is a typical undergraduate problem question on this area. This is a question that I drafted for an examination some time ago and incorporates many of the issues that you would expect to be addressed in such a question.
Thus, in a question such as this, attention should be drawn to the importance of the free movement of goods to the effective and successful operation of the internal market as one of the four fundamental freedoms. Reference should be made to Article 26 TFEU.
It is worth noting from the outset that a question such as this is very likely to have more than one issue concerning the free movement of goods.
...and then address those issues in turn
Bubbles
Quantity limit
Safety cap
Fee
Tax rate
Advertising restrictions
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Conclusion on this issue
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Distinctly or indistinctly applicable measure?


Consider Dir 70/50 - noting that this is was a transitional measure and therefore is no longer formally applicable (see Articles 2 and 3).
Applies equally to domestic and imported products - thus, indistinctly applicable.

Just like Walter Rau Lebensmittelwerke v de Smedt PvbA (Case 261/81) [1982] ECR 3961 – Belgian requirement that all margarine for sale should be in cube shaped form or cube shaped packaging. Problem was that importers would have to adapt their packaging processes to comply with a requirement not imposed upon them at home.
Now, consider whether there is any potential justification. As this is an indistinctly applicable MEQR, it can potentially be justified under Article 36 TFEU or Cassis de Dijon.

The obvious argument here is public health. As this falls within both, either may be used.

However, in either case, the principle of mutual recognition would need to be explained and applied -
where goods have been lawfully produced and marketed in one Member State, there is no reason why they should not be introduced into another Member State. Here, we know that it is only Poland that has the requirement.
Conclusion on this issue
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Charge for service rendered? State law and apply to facts
Then, question whether an argument can be sustained that the charge is for a service.

However, a charge for services rendered will fall outside the Article 30 TFEU prohibition only if: the service provided is of direct benefit to the importer and the charge is proportionate to the service provided.

Apply - here, as in Statistical Levy, the argument is likely to fail. Any benefit to the importer is too vague and uncertain. It should be noted that the argument rarely succeeds in practice.
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Directly or indirectly discriminatory – explain and apply to facts with reference to case law.
Indirectly discriminatory tax (Taxation which appears neutral, but has the effect of discriminating against imported products(see Humblot)), can be objectively justified.

Commission v Greece (Case C-132/88) – Court considered an environmental justification for a car tax system providing for differential rates according to power rating. Greece imposed a tax on new and second hand cars wherever they were produced and once over a 1.8 engine, the tax rose steeply. Greece didn’t produce cars above 1.6. Held it would escape Article 110 TFEU notwithstanding that all higher taxed cars were imported so long as the taxation didn’t have the effect of discouraging Greeks from purchasing foreign cars. On the facts the tax was motivated by other considerations and there was no discernable protective effect.

Apply - here we have an indirectly discriminatory tax which, it could be argued, could be objectively justified on environmental grounds.
Conclusion on this issue
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Distinctly or indistinctly applicable measure?

Consider Dir 70/50 - noting that this was a transitional measure and therefore is no longer formally applicable (see Articles 2 and 3).
Now, consider whether there is any potential justification.

Interestingly, because this measure concerns the way in which goods are sold rather than product characteristics, it would appear to be a 'selling arrangement'.

Thus, apply Keck conditions.
Thus, if the measure is to be justified, it must be done so with consideration and application of Article 36 TFEU and Cassis (remember - this is an indistinctly applicable MEQR).

Note, the question does not require you to repeat previously explained material. Thus, deal quickly with the issues - relevant ground (public health), rebuts presumption of mutual recognition, proportionality etc (see earlier in relation to the safety cap).
Cassis - Principle of mutual recognition and rule of reason – Apply
Article 36 TFEU - Apply
Proportionate response? State law and apply to facts
Conclusion on this issue
You've now dealt with all of the issues raised by the 'Bubbles' scenario.
Feeling good?
Excellent...however, we've not quite finished yet
Excellent, but we still need to pull the piece together
#EUlawrocks
Conclusion on this issue
This Prezi was created by Matthew J. Homewood,
Principal Lecturer in European Union law at
Nottingham Law School.

Feedback is very welcome.

@mjhomewood
matthew.homewood@ntu.ac.uk
Quantitative restrictions can be defined as‘.... measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit’ - Geddo v Ente Nazionale Risi (Case 2/73)

Apply - here we have "a limit on the quantity of bathing products which may be imported". As such, it is a partial restraint of imports. It is a quantitative restriction.
Article 34 TFEU - Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Thus, this non-tariff barrier to trade is a breach of Article 34 TFEU.
Procureur du Roi v Dassonville (Case 8/74) [1974] ECR 837 – “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 measures having an effect equivalent to quantitative restrictions”.

Apply - The requirement to have a safety cap will take time to comply with, will increase production costs and reduce competitiveness or profit margins. As a result, the measure is capable of hindering trade as these may deter Bubbles from entering the market.
Article 34 TFEU- Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Thus, this non-tariff barrier to trade on the form of a measure having equivalent effect to a quantitative restriction (MEQR) is a breach of Article 34 TFEU.
Now, the principle is rebuttable.by the mandatory requirements in Cassis or the list of justifications under Article 36 TFEU.

You then need to consider whether there is a real risk to public health and whether this is a proportionate response (using relevant authorities such as San Jose Scale and Walter Rau).


Finally, (and this very much links to whether a real risk exists and indeed, whether the response is proportionate) consider whether the measure merely amounts to arbitrary discrimination or a disguised restriction on trade. Again, use relevant case law (Poultry Meat for example).
Commission v Italy (Case 24/68) (Re Statistical Levy)
- “any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product.”

Apply - here we have a pecuniary charge (the 2.5 Zloty fee) which has been levied for the compilation of statistics. As such, it is not a clear duty because goods have crossed a frontier, but it does meet the definition of a charge having equivalent effect (CEE).
Article 30 TFEU - Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States.

Thus, this tariff barrier to trade is a breach of Article 30 TFEU.
Here we are dealing with a matter of internal taxation. A definition of a genuine tax was given by the Court of Justice in Commission v France (Reprographic Machines) (Case 90/79) as a measure relating to a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products.
Article 110 (1) TFEU
No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Article 110 (2) TFEU
Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such nature as to afford indirect protection to other products.

Here, you need to consider which paragraph the measure falls into.
In John Walker v Ministeriet for Skatter (Case 243/84), the issue was whether Whisky and fruit liqueur wine were similar. It is obvious that they are both alcoholic drinks but the Court decided they were not similar because they had different characteristics. The process used to make them was different and they had significant differences in terms of alcohol content. Held that the term ‘similar products’ should be interpreted widely to encompass similar characteristics and comparable use.

Apply - On the facts there is nothing to suggest that the domestic and imported products are different in anyway and therefore it would be acceptable to assume that they have similar characteristics and comparable use.

As such, the tax is a breach of Article 110(1) TFEU.
Procureur du Roi v Dassonville (Case 8/74) [1974] ECR 837 – “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 measures having an effect equivalent to quantitative restrictions”.

Apply - Advertising is a key component of market access. If this is restricted, Bubbles may not be willing to enter the market or in so doing, would be at a significant disadvantage to domestic producers.
Article 34 TFEU- Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Thus, this non-tariff barrier to trade in the form of a measure having equivalent effect to a quantitative restriction (MEQR) is a breach of Article 34 TFEU.
Applies equally to domestic and imported products. Thus, indistinctly applicable.

Just like Walter Rau Lebensmittelwerke v de Smedt PvbA (Case 261/81) [1982] ECR 3961 – Belgian requirement that all margarine for sale should be in cube shaped form or cube shaped packaging. Problem was that importers would have to adapt their packaging processes to comply with a requirement not imposed upon them at home.
Criminal Proceedings against Keck and Mithouard (Cases C-267 & 268/91)– Concerned a French law stating that goods could not be re-sold at a loss. This was an issue because it would affect the overall volume of sales and the sales of products from other Member States. However, the court said that certain selling arrangements do not fall within the Dassonville formula –
 
 
“...provided that those provisions apply to all affected traders operating within the national territory and provided they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States…”.
However, their are authorities recognising that advertising restrictions do not apply equally in law and in fact - Konsumentombudsmannen (KO) v De Agostini (Svenska) Forlag AB (Cases C-34-6/95) - Related to a ban on TV advertising at children under 12. Court found that where a producer is unable to advertise its product it may be prevented from accessing a market. The same restrictions may have less impact on domestic products as they will already be known. Thus, outside of Keck due to the discriminatory effect.

Apply - the restrictions on advertising would have an adverse impact upon Bubbles in comparison to domestic producers. As such, the measure would not satisfy the Keck conditions.
Now, you've already concluded each issue as you've dealt with it, so what's the point of a final conclusion?
This is your opportunity to conclude your answer by pulling together the individual issue conclusions. In so doing, you neatly finish the piece and provide the examiner with a clear and concise summary of where your legal arguments have taken you.
...and that's all there is to it!
Consideration might at this point be given to whether the measure could be justified.

The only means by which quantitative restrictions can potentially be justified is under Article 36 TFEU.

However, given that there is nothing on the facts to suggest a potential justification, this should be dismissed swiftly as the available time is needed to concentrate on issues actually raised by the question.
.
Be confident in exercising your academic judgment in this regard. The very best answers don't waste valuable time or words on non-issues.
Full transcript