French law (i.e. Article R.253-52 of the code rural) stipulates the definition of the “the reference product ” and relevant three criteria assessing whether the product introduced into the national territory is identical to the reference product. In November 2007, in order to market a plant protection product ‘Agrotech Ethephon’ in France, Mac GmbH (‘Mac’) applied for a parallel import authorisation for such product under the name ‘Mac Ethephone’ in that Member State. Prior to the application, the marketing of the product Agrotech Ethephon had been authorised in the United Kingdom as a parallel import, using the marketing authorisation granted in the United Kingdom to Bayer Cropscience Ltd for Cerone as the reference product. Subsequently,
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The key question is: how far does the Treaty encroach on the decisions of the democratically elected governments of the Member States ? To examine this question chronologically, firstly, in Dassonville the classic definition of MEEs is that “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” . The manifest feature of the Dassonville formula is the great breadth of interpretation of MEEs. The Dassonville formula not only refuses to apply a demininis rule but also does not require an appreciable effect on trade . Thus, a rule of remoteness held by the Court is applied, which illustrates that measures fall outside Article 34 TFEU on the ground that the possibility of their affecting imports is too ‘uncertain and indirect’ to be regarded as liable to hinder trade between Member States . Moreover, another obvious characteristic of the Dassonville formula is that it only concentrates on the effects of a measure rather than to its aims. Since the early cases all involved ‘distinctly applicable ’, whether or not discrimination is a necessary element of an MEE was never considered …show more content…
An obstacle to free movement of goods caused by Member States’ authorities may be justified only when the relevant restriction is both appropriate and necessary to ensuring the pursuit of the objective in question. In other words, the proportionality test appraises national legislation in two steps, involving whether the measure employed is suitable for the purpose of obtaining the pursued aim and whether there are alternative measures that could equally achieve the pursued aim but have less restrictive effects on the free movement of goods in EU . For the purpose of protecting human and animal health and the environment, it is not necessary to make parallel importers subject to the marketing authorization procedure laid down by Directive 91/414 for the reason that the competent authorities in the importing Member State already have all the information necessary for the exercise of that scrutiny; therefore, the French legislation to make the product as a parallel import subject to the marketing authorisation procedure must go beyond the inevitable restrictions for the fulfillment of the objectives as to the protection of public and animal health and of the environment
The key question is: how far does the Treaty encroach on the decisions of the democratically elected governments of the Member States ? To examine this question chronologically, firstly, in Dassonville the classic definition of MEEs is that “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” . The manifest feature of the Dassonville formula is the great breadth of interpretation of MEEs. The Dassonville formula not only refuses to apply a demininis rule but also does not require an appreciable effect on trade . Thus, a rule of remoteness held by the Court is applied, which illustrates that measures fall outside Article 34 TFEU on the ground that the possibility of their affecting imports is too ‘uncertain and indirect’ to be regarded as liable to hinder trade between Member States . Moreover, another obvious characteristic of the Dassonville formula is that it only concentrates on the effects of a measure rather than to its aims. Since the early cases all involved ‘distinctly applicable ’, whether or not discrimination is a necessary element of an MEE was never considered …show more content…
An obstacle to free movement of goods caused by Member States’ authorities may be justified only when the relevant restriction is both appropriate and necessary to ensuring the pursuit of the objective in question. In other words, the proportionality test appraises national legislation in two steps, involving whether the measure employed is suitable for the purpose of obtaining the pursued aim and whether there are alternative measures that could equally achieve the pursued aim but have less restrictive effects on the free movement of goods in EU . For the purpose of protecting human and animal health and the environment, it is not necessary to make parallel importers subject to the marketing authorization procedure laid down by Directive 91/414 for the reason that the competent authorities in the importing Member State already have all the information necessary for the exercise of that scrutiny; therefore, the French legislation to make the product as a parallel import subject to the marketing authorisation procedure must go beyond the inevitable restrictions for the fulfillment of the objectives as to the protection of public and animal health and of the environment