Eu -Qr

Front 1

INTRO TO QR AND MEQR

DEFINETHESE?

Back 1

Prohibitionof Quantitative Restrictions (QRs) on Goods or Measuresof Equivalent Effect to Quantitative Restrictions (MEQRs)

Unless prohibited by Art 36•

Front 2

2 CASES TO DEFINE QR

Back 2

GEDDO - prohibitionsor quotas.

DASSONVILLE - all trading rules enacted by M/S capable of hindering directly or indirectly, potentially or actually, intra-EC trade are prohibited as measures of equivalent effect to quantitative restrictions

Front 3

6 CASE LAW EXAMPLES OF

QR ANDMEQRS

(ABCCCC)

Back 3

APPLE & PEAR – CONTRAST- BUY IRISH

BUY IRISH CASE

COMM V ITALY – CHASSIS NO

COMM V IRELAND - (Origin Marking Foreign)

COMM V UK (Origin Marking)

COMM V FRANCE – (Wine inspections)

Front 4

Exceptions to Art 34

DISTINCTLY APPLICABLE - DIFF RULES

MANDATORY REQUIREMENTS TEST

Back 4

CHOOSE 1 - Judicially created exceptions to justify M/S measures that target foreign goods

(‘distinctly applicable measures’)

Not arbitrary ·

Proportionate to objective*

Front 5

issue 1

7 cards (reminder)

Back 5

*art 36 test (3 stages)

*keck test (3 things)

*keck passed (reasons x4)

*keck justification

* 3 cases (le clerc, semarco, tankstation

Front 6

Art 36 (derogations/exemptions) ·

Back 6

Choose1 of 6 justifications (public policy)· Notarbitrary·

Proportionateto objective*

Front 7

ISSUE 1 (7 cards)

Boundaries placed on Art 34 scope

KECK TEST

issue 1

Back 7

1. It relates to a selling arrangement YES

2. The measures apply to all traders both domesticand foreign traders and YES

3. The measures apply indistinctly applicably notonly in law, but also in fact to all traders. YES

Front 8

KECK ACCEPTED BECAUSE

2 REASONS (1)

issue 1

Back 8

1. they pursue national “orderly regulation of the economy” aims, and

2. they do not seek toregulate trade between M/S in a discriminatory way

Front 9

KECK ACCEPTED BECAUSE

2 REASONS (2)

issue 1

Back 9

The measure affectsimport volumes (by reducing selling opportunities) but do not requirejustification because:

1. such measures do notprevent imports, and

2. nor seek to givenationals advantage over imports

Front 10

justification under keck

issue 1

Back 10

the measure is compatiblewith Art 34 without any need to justify them under Cassis “mandatoryrequirements test:

Front 11

issue 1

case 1 of 3

Back 11

tankstation- regulation of opening hours of petrol stations not anMEQR provided applied to all traders in same manner...

Front 12

issue 1

case 2 of 3

Back 12

Semarco Casa V Sindaco - ...regulation of retail outlets trading hours (a selling arrangement) not an MEQR even though it may have had incidental effect on level of import trade ….provided Keck criteria respected, the national measure is not an MEQR...

Front 13

issue 1

case 3 of 3

Back 13

Le Clerc Simplec v TFI Publicite - a) advertising rules fell outside Art 34 because they are selling arrangements which comply with Keck criteria b) rules DO NOT impede market access

Front 14

issue 2

7 cards (reminder)

Back 14

*keck test (fail)

*Art 34 boundaries

*keck test failure 5 reasons)

*cassis test (2)

*cassis ruling (3 things)

*cases x 3 (bier, smedt, gilli)

* application 4 things

Front 15

ISSUE 2 (7 cards)

KECK TEST (fail)

Back 15

1. It relates to a selling arrangement YES

2. The measures apply to all traders both domestic and foreign traders and YES

3. The measures apply indistinctly applicably not only in law, but also in fact to all traders. NO

Front 16

KECK failed BECAUSE

2 REASONS

issue 2

Back 16

1. they FAIL TO pursue national “orderly regulation of the economy” aims, and

2. they seek to regulate trade between M/S in a discriminatory way

Front 17

KECK failed BECAUSE

3 REASONS

issue 2

Back 17

The measure affectsimport volumes (by reducing selling opportunities) AND requires justificationbecause:

• such measures preventimports being circulated at libraries, and

• seek to give nationalsadvantage over imports and

• limit access

Front 18

Boundaries placed on Art 34 scope

Back 18

Selling arrangementsNot defined by the ECJ ECJ did indicate that “product composition” rules cannot be “selling arrangements” and so Cassisremains if Keck fails. Boundary placed on Art34s scope as certain measures (“selling arrangements”) do not constitute MEQRs

Front 19

CASSIS TEST

2 things

issue 2

Back 19

Cassis can only be used to justify origin neutral MEQRs (i.e., measures that are Indistinctly Applicable as to origin)

• Trading rules which are not discriminatory as to origin of goods

• Yet render inter-State trade more difficult.

Front 20

cassis ruling

3 things

issue 2

Back 20

Once goods lawfully marketed in oneM/S, they cannot be prevented from being marketed in other member States unless

• RULE OF REASON – ADOPT A MANDATORY REQUIREMENT

• no arbitrary discrimination (OBVIOUS OR HIDDEN)

• proportionate to the objective

Front 21

issue 2

case 1 of 3

Back 21

Italy v Gilli & Andres (IMPORTED APPLE VINEGAR) – indistinctly applicable -but not justifiable

· disproportionate objective ofsafeguarding· consumers should be adequately informed (more proportionate means to allowall opinions)· Consumers’ - attention misleading

Front 22

issue 2

case 2 of 3

Back 22

Rau v De Smedt

(margarine)(packaging)

disproportionate way to advise consumers

Front 23

issue 2

case 3 of 3

Back 23

German Bier case –

1. disproportionate due to excessive protection;

2. M/S cannot use national law to crystallize consumer taste

Front 24

issue 2

application only

Back 24

1. Measure objectionable as would allow ONLY domestic products available in libraries.

2. The ban on imports ensuresthat no products can ever reach the library shelves.

3. Domestic goods have the opportunity because thereis only a ban on the sale of domestic goods.

4. appears to be no ban on advert rules.

Front 25

issue 3

8 cards (reminder)

Back 25

* distinctly applicable (art 36 exceptions)

* 2 cases example (morality)

* 3 stage test

* arbitary

* proportionality (2 stage test)

* proportionality (necessity) (2 elements)

* PUBLIC POLICY CASE

* 3 final things

Front 26

issue 3

Distinctly applicablemeasure –

art 36 (Public Policy)

2 things

Back 26

Art 36 – Public policy/

1. Distinctly applicable measures – different treatment toboth sides

2. Art 36 can only beused to justify origin-specificMEQRs (i.e., measures that discriminate against foreign goods ON BASISthat they are foreign

Front 27

issue 3

distinctly applicable

public morality case example

Back 27

Henn and Darby (Explicit Material)BANNED IMPORTS BUT SAME RULE TO DOMESTIC – OKAY

ConegateLtd(sex dolls) = NO proof that a similar ban wasapplicable to domestic products, illegal

Front 28

issue 3

application

3 stage test

Back 28

1. Choose 1 of 6 justifications (public policy)· 2. Not arbitrary (disguised restriction ontrade)

3. Proportionate to Art36 objective* 2 tests: a test of suitability and a test of necessity

Front 29

issue 3

application (arbitary)

3 things

Back 29

1. Measure would be objectionable as would only restrict political parties from selling or circulating imported GOODS.

2. This would be a disguised restriction on trade between MSs and thereforearbitrary.

3. NO clear equivalentprohibition internally in UK [Conegate] so contrary to art 36 as they seizure of goods atborder.

Front 30

issue 3

proportionality test

suitability and necessity **

2 things

**also 2 other elements

Back 30

1. Court balances the objectivepursed by the measure at issue and its adverse effects on individual freedomwith BoP on MS to prove proportionate.

2. Proportionality is a matter for the national court to decide, but theECJ often intervenes because fundamental rights, including freedom of expression, canlimit a State’s discretion

Front 31

issue 3

proportionality test

necessity

2 elements

Back 31

Two distinct elements:

1. other less restrictive means ofproducing the same result and even if there are no less restrictive means,

2. confirmingthat the measure does not havean excessive effect on the applicant’s interests

Front 32

ISSUE 3

case 1 of 1

Back 32

Comm v Italy(Chassis number)

vehiclechassis Document requirement

. public policy, thatis, to prevent fraud and the theft of cars.

measure was notproportional as a visual inspection of the registration book would showthe chassis number and the other information required.

Front 33

Can still be a QR/MEQR even if:

3 things

Back 33

1. it is of relatively minor economic significance;

2. it is only applicable on a very limited geographicalpart of the national territory;

3. it only affects a limited number of imports/exports ora limited number of economic operators.