Fichas
(Cases) Non fiscal Barriers- Free Movement of Goods
Fichas del conjunto (38)
- 1R v Royal Pharmaceutical Society of Great Britain, ex party Association of Pharmaceutical importers (Cases 266 & 267/87) [1989] ECR 1295 (Royal Pharmaceutical Society)example of a art 34 applying to quasi-public bodies. UK conferred regulatory powers to the society, and was still found in breach of 34.
- 2Commission v Ireland (Case 249/81) [1982] ECR 4005 (Buy Irish)MS cannot circumvent their obligations under art 34 by relying on a private company.
a campaign to promote irish goods launched by the Irish Gov. they established a company called the Irish Goods Council to pursue the campaign, appointed the council's management committee, grated it public subsidies and defined its aims. The court held that the Irish gov could not rely on the fact that he campaign was conducted by a private company in order to escape any liability it may ave under the provisions of the treaty. was in breach of 34, it influenced traders choice and frustrated the objectives of EU Law
eg of distinctly applicable MEQR
**national rules giving preference to domestic goods** - 3Commission v France (Case C-265/95) [1997] ECR I-6959 (Spanish Strawberries)MS is in breach of 34 if it fails to take necessary and appropriate measures to prevent he free movement of goods being obstructed by private individuals.
French authorities had failed to take adequate measures to prevent certain groups of french farmers engaging in violent campaigns directed at agricultural products form other MS such as strawberries from spain and belgian tomatoes. Such action deterred foreign goods and was the lack of accountability breached 34. - 4Geddo v Ente Naxionale Risi (Case 2/73) [1973] ECR 865 (Geddo)case defines quantitative restrictions: they are measures which amount to a total or partial restraint...of imports, exports or goods in transit.
- 5R v Henn and Darby (Case 34/79) [1979] ECR 3795 (Henn and Darby)case concerned a ban on the importation of pornographic material into the UK. defendants were convicted of violating the relevant statutory offense. The court held that the statutory offense breached art 34 because it banned the import of the material.
UK was able to invoke a public morality derogation, as the court decided that it is up to each MS to determine the its own scale of values selected by the requirements of public morality. Addiotnally the UK was not discriminating against specific types of products and there is no legal trade of pronography in the UK - 6Procureur du Roi v Dassonville (Case 8/74) [1974] ECR 837 (Dassonville)provides a definition of a MEQR:
all trading rules enacted by MS 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 quantitive restrictions.
=
the dassonville formula.
also and example of directly applicable MEQR, regarding forged certificates. Court held that the certificates of origin for imported goods was a MEQR.
**Restricting the channels through which goods can be imported** - 7Eg. of distinctly applicable MEQR case law-Firma Dinkavit Futtermittel GmbH v Minister fur Ernähgrung
-Dassonville
-Irish Souvenirs
- - 8Firma Denkavis Futtermittel GmbH v Minister fur Ernahgrung (Case 251/78) [1979] ECR 3369 (Firma Denkavis)milk based feeding stuffs, could only be import into west germany if they satisfied two conditions: 1. importer had to produce a certificate from the sporting MS confirming decontamination and 2. samples had to be inspected. Both requirements were held to be MEQRs prohibited by art 34. domestic court sought to justify with derogations.
(EG distinctly applicable MEQR)
**Imposing additional requirements on imported goods** - 9Commission v Ireland (Case 113/80) [1981] ECR 1625 (Irish Souvenirs)Irish rules required imported jewelry that incorporated motifs suggesting that they were souvenirs from ireland, such as a shamrock motive, to hear an indication of the country in which it was made and the word 'foreign'. Court stated that consumers did not need to know the country of origin and was a MEQR.
**National Rules giving preference to domestic goods** - 10Eg of indistinctly applicable MEQRs case law-Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon)
- 11Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (Case 120/78) [1979] ECR 649 (Cassis de Dijon)established that Dassonville made no reference to the measures having to be distinctly applicable, simply had to hinder trade, and thus indistinctly applicable measures are also prohibited under art 34.
Case: concerned german law specifying a minimum alcohol level of 25% for fruit liqueurs. Cassis was a blackcurrant fruit french liquor with 15%, thus was indistinctly applicable as it applied to both foreign and domestic alcohols.
German level = MEQR
Cassis principle: rules which are indistinctly applicable can still place an importer at a disadvantage compared to domestic producers. Prevents importer from injuring a dual burden of two different markets.
Principal of mutual recognition address this by only requiring that the imported goods only need to comply with the regulatory regime of their home MS.
Second principal: indistinctly applicable MEQRs can be justified where it is necessary to satisfy mandatory requirements. - 12Conegate v HM Customs & Excise Commissioners (Case 121/85) [1986] ECR 1007 (Conegate)Court of Justice held the the derogation (public morality) was not available to the UK. UK tried to ban the import of german sex dolls, however the same good could be manufactured in the UK and thus the ban arbitrarily discriminated agains imported goods. Derogation not available.
- 13R v Thompson (Case 7/78) [1978] ECR 2247concerned a ban in the UK on the export of silver coins in order to prevent them from being melted down or destroyed. Derogation (public policy) was accepted as the Court held that the ban on exports stemmed from the need of the state to protect the right to mint coinage. Satisfied pull policy as concerned a fundamental interest of society.
- 14Campus Oil Ltd v Minister for Industry and Energy (Case 72/83) [1984] ECR 2727 (Campus Oil Ltd)used the derogation of public security
concerned an Irish Oil Refinery that was acquired by the state. instead of letting it close the state required that Irish petroleum importers must get 35% of their supply at a fixed price from the now state owned refinery. Ireland held that petroleum products were of fundamental importance to the public security as state institutions, public services and heating of citizens relied upon it. Court agreed with the derogation and it was allowed. - 15Commission v Greece (Case 347/88) [1990] ECR I-4747Derogation of (public security)
Greek law allows the state the exclusive right to import and refine petroleum products. Suppliers could only get the product from greek refineries. Marketing quotas were instated = MEQR contra art 34.
Derogation failed due to lack of evidence that public sector refineries would be unable to dispose of produces on the market at competitive pricing. Measures were unnecessary and thus disproportionate = failure - 16Cullett v Centre Leclerc Toulouse (Case 231/83) [1985] ECR 305 (Cullett)Derogation of (public security)
Leclerc group sold petrol at prices below the minimum price set by french law. The minimum pricing laws were contra art 34 = canceled any competitive advantage that import petrol would have over french petrol. Derogation of public security under augment that petrol competition threaten public order/security if it was unrestricted. Was seen as unrealistic and dismissed. - 17Commission v Germany (Case 178/84) [1987] ECR 1227 (Beer Purity)invoked Protection of health derogation
an attempt by the West german Gov to rely on this derogation to justify a general ban on oddities in beer failed as the ban covered additives used in other MS which had not been proven to pose a threat to public health, disproportionate. - 18Criminal Proceedings Against Sandoz BV (Case 174/82) [1983] ECR 2445 (Sandoz BV)invoked derogation of protection of health
if scientific evident to health risk is inconclusive..Court will allow MS to decide the degree of health protection required.
ban in netherlands on selling foods containing vitamins (muesli bars). Scientific evidence could not corroborate. - 19Commission V United Kingdom (Case 40/82) [1982] ECR 2793derogation of protection of health
UK sought to justify a ban on the importation of poultry meant, eggs and egg products into the UK on the ground of the need to control Newcastle disease in poultry.
was rejected by court when it was concluded the real reason for the ban was to protect UK producers.
Ban was disguised as a trade restriction and thus derogation failed. - 20Criminal Proceedings Against Bluhme (Case 67/97) [1998] ECR I-8033 (Bluhme)Derogation of protection of health
includes animals, derogation invoked to protect the town be a of Laeso. Was approved as the bee was endangered and the ban was for biodiversity efforts. - 21PreussenElektra AG v Schleswag AG (Case C-379/98) [2001] ECR I-2099 (Schleswag)invoked protection of health derogation
german legislation requiring electricity distribution undertakings to purchase at fixed minimum prices electricity produced from renewable energy sources in their area of supply in Germany. held that the legislative policy was justified as its was designed to protect health. - 22Walter Rau Lebensmittelwerke v de Smedt PvbA (Case 261/81) [1982] ECR 3961 (Walter Rau) mand req.Application of both Cassis principles.
Belgian legislation required all margarine in Belgium to be sold in cubic packs, regardless of the margarine's origin.
= MEQR due to packaging requirements
defense was mand. req. of consumer protection.
restriction was not proportionate as consumers could be protected just as well via labeling = less hinderance on trade - 23Commission v Italy (Case C-14/100) [2003] ECR I-513 (Relabelling of Cocoa Products) mand reqItalian law that required cocoa and chocolate products contain tin vegetable fats other than cocoa butter had to be labeled as cocoa substitute.
ruled MEGR due to cost related to packaging requirements, against importers.
important point: art 24 is not designed to prevent domestic goods being discriminated against. it is only concerned with restrictions on imports and the italian measure was liable to impede imports.
when domestically produced goods are placed at a disadvantage compared with imported goods is known as a reverse discrimination. - 24Cinetheque SA v Federation Nationale des Cinemas Francais (Cases 60 & 61/84) [1985] ECR 2605 (Cinetheque SA)case illustrates that the mandatory requirements list outlined in Cassis is not an exhaustive list, and the Court of Justice can add to the list at will.
eg in this case, the protection of cultural activities such ash protection of cinemas may be a mandatory requirement.
details:
a french law banned the sale or hire of videos of films during the first year of their release was justifiable by the fact hat it was necessary to encourage the French public to go to the cinema and protect the profitability of cinematographic production. applied equally to domestic and imported. - 25Commission v Denmark (Case 302/86) [1988] ECR 4607 (Disposable Beer Cans)as per Cinetheque SA, another additional mandatory requirement is the protection of the environment.
in this case, den make has a law tyha required drinks to be produces in standard size containers for recycling where justified on the basis that they proportional meth the objective of protecting the environment. - 26Schmidberger v v Republik Osterreich (Case C-112/00) [2003] ECR I-5659 (Schmidgberger)balancing between mandatory requirements and treaty obligations..
the Austrian Gov was the first MS gov to use protection of fundamental rights as a justification for restricting a treaty freedom when it allows a one day environmental demonstration to close the Brenner motorway, a massive trade route.
the citizens fundamental freedom of expression and assembly was accepted by the court as a justified restriction on free movement of goods. - 27Criminal Proceedings Against Oosthoek's Uitgeversmaatschappij BV (Case 286/81) [1982] ECR 4575 (Oosthoek's)Selling Arrangements:
concerned a dutch law which prohibited free gifts being offered or provided within a commercial activity. The Court observed that legislation which restricts adverts and sales promotions may reduce the volume of imports by adversely affecting the opportunities for the imported products to be marketed = an obstacle to free movement of goods potentially constituting an MEQR. However it concluded that the Dutch ban on free gifts here could be justified on the gourds of consumer protection and fair trading because offering free gifts as a means of sales promotion may mislead consumers as to the real prices oaf the products and distort the conditions on which genuine competition is based. Court was in favor of Dutch legislation. - 28Torfaen Borough Council v B & Q plc ( Case 145/88) [1989] ECR 3851 (Torfaen)selling arrangement held as an MEQR:
concerned a British law which required most shops to be closed on Sundays.
certain DIY stores trading on sundays breached said law.
B&Q claimed banning sunday trading was in breach of art 34. Court agreed: as was against foreign goods that could have been sold on sundays.
was justifiable under socio-cultural grounds per sunday being 'special'
left to domestic courts which came to different conclusion.
justification upheld in Stoke-on-Trent City Council and Norwich City Council v B & Q plc (case c-169/91) [1992] ECR I-6635.
created issues surrounding the judgement of being and MEQR as there was no dual burden and the law effected both domestic and imported goods equally. - 29Criminal Proceedings Against Keck and Mithouard (Cases C-367 & C-298/91) [1993] ECR I-6097 (KECK)prosecution of two super market managers for selling goods at a loss in contravention of French law. Defense: pleaded that the law itself contravened art 34 as it constituted an indistinctly applicable MEQR = law deprived them of a method of promoting their goods and thus reduced the volume of sales of goods imported by them into France.
more and more traders were relying on 34 and thus the court needed to review what constituted a breach.
test: Selling arrangements would not longer be considered MEQRs so long as they fulfilled the following two conditions:
1. apply to all affected traders operating within the national territory
and
2. affect the marketing of domestic and imported products in the same manner in law and in fact. (proportional)
if satisfied, then such arrangements would no longer fall under art 34. - 30Criminal Proceedings Against Tankstation 't Heukste vof and JBE Boermans (Cases C-401 & C- 402/92) [1994 ECR I-2199 (Tankstation)same as Punto Casa SpA v Sindaco del Communie di Capena (cases C-69 & C-258/93) [1994] ECR I-235
both cases mark a shift from pre Keck with similar details as Torfaen and Stoke on Trent except they are now no longer MEQR's as the satisfy the Keck test. - 31Cases found to have failed the Keck test:1. Libro: austrian law set minimum prices for imported german language books. part of law only applied to imported books and thus was an MEQR
(not proportional)
2 De Agostini: swedish ban on tele ads targeted a children under 12 and skin care ads. satisfied first keck, but not second as affected imported products more.
3. Gourmet International Products: swedish law banned ads of alcohol. = indistinctly applicable MEQR - 32Cases distinguishing between product requirements and selling arrangements1. Verein gegen Unwesen in Handel und Gewerbe Köln v Mars GmbH: sales promotion by Mars with 10% larger in packaging. Court agreed that it was a product requirement as it related to the wrappers. = art 34
2. Vereinigte Familiapress Zeitungsverlags und Vertriebs GmbH v Bauer Verlag: Austrian unfair competition act prohibited the sale of newspapers and magazines which contained competitions giving big money prizes (sales promotion) Left to Austrian court to determine proportionality. =art 34 - 33National Raad van Dierenkwekers en Leighebbers VZW v Belgium (Case C-219/07) [2008] ECR I-4475 (Raad van Dierenkwekers)any legal provision of a MS prohibiting goods which have not been previously authorized from mine marketed, acquired, offered, put on display, or sale, kept ,prepared, transported, sold, disposed of for valuable consideration or free of charge, imported or used, constitutes a MEQR under art 34.
- 34Commission v Italy (Case C-110/05) [2009] ECR I-519 (Trailers)held that MEQRs were not confined to measures which have a discriminatory object or effect and to indistinctly applicable product requirements but also consisted of any other measure which hinders the access to he market of a MS of products originating in other MS.
concluded that prohibition of the use of two, three and four wheel motorcycles to tow trailers on roads in Italy was a restriction on the free movement of trailers designed for motorcycles. Consumers would not by them if they couldn't use them. was an MEQR, accept was upheld on the need for road safety - 35Aklagaren v Mickelson and Roos (Case C-142/05) [2009] ECR I-4273 Mickelson and Roosprosecution of two jet ski users for breaching a Swedish law which only permitted Jet-skis to be used on general navigable waterways and on other waterways designated by local authorities.
could constitute an MEQR, accept under the protection of health and liv of humans animals and plants (derogation) was seen as enforceable - 36Procureur de la République de Besançon v Les Sieurs Bouhelier (Case 53/76) [1977] ECR 197French law required exports of watches to be authorize by export licenses or to be accompanied by standards certificates issued by the french technical center of industry (ensure quality standards). No equivalent requirement for domestic sales.
breach of 35, the fact that the same wasn't applied to domestic watch sales = arbitrary discrimination which constituted an obstacle to intra-community trade. - 37P.B Groenveld BV v Productschap voor Vee en Vlees (Case 15/79) [1979] ECR 3409 (Groenveld)Dutch law prohibited all manufacturers of meat product from having horsemen in stock in order to ensure that horsemen whole not be exported by accident to countries where it is banned. Measure was indistinctly applicable because it applied to all such manufacturers irrespective of whether their meat products were to be marketed within the Netherlands or not.
not regulated by 35 because 35 only applies to measures that have 'as their specific object or effect the restriction on the patterns of export
thereby: an establishment of a difference in treatment between domestic trade and the export trade that provides an advantage for national products or the domestic market at the expense of said product or of the trade with other MS. - 38Criminal Proceedings Against Gysbrechts (Case C-205/07) [2008] ECR I-9947 Gysbrechtsacknowledges that indistinctly applicable measures imposed by MS of export can sometimes place exported goods at a disadvantage.
this case that such measures can constitute an MEQR under 35.
when they place exported goods at a disadvantage.
Majority of Gysbrechts sales were online sales. required credit card details when placing orders. which was against belgina law, court held that this was an MEQUR as it restricted the export of the companies goods.
Información
- Descripción
- Ch 6 BPP notes, art 34-6 TFEU
- Creado por
- Spencer Bienvenue
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