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42 Cards in this Set
- Front
- Back
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Barnard |
The Trailers case did not fit the standard free movement of goods model The introduction of a market access test, the mainstay of the court's jurisprudence in respect of other freedoms, has received weighty support in the past Keck has been continued to situations concerning arrangements for sale in the narrowest possible sense and it seems unlikely to be extended |
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Commission v Italy |
Goods are anything 'which can be valued in money and which are capable of forming the subject of commercial transactions.' |
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Art 34 TFEU |
Prohibition on QRs on imports and MEQRs |
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Art 35 TFEU |
Prohibition on QRs on exports and MEQRs |
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Art 36 TFEU |
Exhaustive derogations |
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Vertical Direct effect |
all free movement provisions have a vertical direct effect. This also includes MS failure to prevent obstacles arising from private initiative. |
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Spanish strawberries (Vertical direct effect) |
In France in the 1990s, farmers were systematically stopping and attacking lorries importing fruit from Spain as they felt they were too cheap for the French market. This action was done by individuals so the question was whether vertical direct effect can apply? The court said yes as there wasn't enough evidence that the French authorities had done enough to stop this from happening. |
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Horizontal effect |
It is clear that FMOG provisions have vertical direct effect but that they cannot be relied on by private individuals/companies unless they are in situations where the government is essentially behind the company or the state has delegated certifications powers of compliance with legislation to a private body. |
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Buy Irish |
Irish government orchestrated a campaign to promote Irish products. It was formally introduced by the Irish Goods Council which was formally a private body but its management was appointed by the government and funding came from the Irish state. Court looked to substance and effect and said the Irish government was responsible for the campaign. Therefore this was essentially a case of vertical direct effect. |
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Fra.bo |
Italian company challenged certification from German standardisation company. This was a private body which issued certification of compliance with certain standards, This looked to be horizontal direct effect but the court said it actually involved vertical direct effect. They standards set by the private body also complied with German legislation. In a way this was delegation by the state to a private body. |
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What is a QR? (Geddo case) |
A total or partial restraint of imports, exports or goods in transit |
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Henn & Darby (QRs) |
UK prohibition on the importation of pornographic material |
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What is an MEQR (Dassonville) |
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 quantitative restrictions. Wide definition to capture range of situations Effects based rather than based on intention |
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Distinctly applicable measure |
means the same as direct discrimination |
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Cassis (Indistinctly applicable measures) |
Blackcurrant liquor was made in France with approx a 20% alcohol content. But in Germany there was legislation whic set a min alcohol content for fruit liquors. The importer challenged this rule. The key point is that the rule applied to German and imported products alike so this was a case of an indistinctly applicable measure. The court introduced two important rules as a result: 1) mutual recognition 2) mandatory requirements |
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Mutual recognition (cassis) |
If a product is lawfully manufactures according to the standard of regulations of one MS, once it is imported into another MS, this latter MS should recognise the product as lawfully manufactured/regulated and so should not impose a second set of requirements Does this lead to a race to the bottom? If MS have to recognise as equivalent the regulatory standards of other MS, there is an incentive to lower the standards to gain a competitive advantage. However these concerns can be addressed through mandatory requirements (public interest justifications) |
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Mandatory requirements (cassis) |
The court allows MS to come up with new justifications to apply their own rule if these are necessary to safeguard the public interest and to be proportionate. Art 36 TFEU contains an exhaustive list of derogations which would have constrained regulatory bodies if they weren't able to offer new justifications. |
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Rau |
Requirement in Belgium for margarine to be sold in cube shaped packaging. This was indirect discrimination. The court said they could not impose a rule on imported products but where welcome to impose it on Belgian products if they wanted |
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Commission v Germany
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Beer purity laws in Germany had been in place since the 17th century. They banned additives in beer. Court applied cassis principle of mutual recognition. There was a legitimate policy concern of giving consumer informed choice but the banning of additives etc was disproportionate. A labelling requirement would be less restrictive (though this is still a restriction on FMOG the court accepts small level of restriction for a legitimate policy concern.) |
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Drei Glocken (sometimes consumer opt for quality-race to the top) |
German pasta producer tried to sell pasta in Italy. Italian laws at the time required pasta to only be made from durum wheat. German producer challenged this in front of a national court which referred the issue to the CJEU. The AG gave an opinion on how to decide the case and got carried away by saying pasta not made from durum wheat would cause mass problems. The court did not follow this opinion. But even though the German producer was able to import non durum wheat pasta, the consumers still picked the durum wheat |
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Torfaen BC v B&Q |
B&Q challenged the Sunday Trading Laws by trying to rely on Art 34. They claimed the laws were an MEQR. CJEU's response was ambiguous. It seemed to endorse such a defence but then left it to the national court to determine whether the breach of art 34 could be justified. |
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Hunermund |
A measure that only reduces the total volume of sales has nothing to do with trade or market integration. |
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Keck |
Belgian prohibition of resale at a loss. Court said they needed to distinguish between product requirements and selling arrangements |
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product requirements |
rules laying down requirements to be met by goods e.g. rules concerning: designation form size weight composition presentation labelling packaging The imposition of these rules on foreign products is discriminatory as they need to change to comply with these rules whereas the domestic products already do. If advertising restrictions affect the actual product they are product requirements |
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Mars
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someone tried to challenge Mars for producing bars claiming you got an extra 10% but this wasn't actually the case. This advertising was deemed to be a product requirement. |
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product requirements v selling arrangements (in Keck) |
Product requirements automatically fall within Art 34 TFEU. Selling arrangements (rules on where, when and how products are sold) are presumed to fall outside of art 34 unless they are proven to be directly/indirectly discriminatory. Rationale is that product requirements are inherently obstructive to trade. Keck was a controversial case as many questioned the need for a distinction |
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Heimdienst (selling arrangements) |
Rule requiring bakers who conducted door-to-door deliveries to have a shop in the same area. Indirectly discriminatory selling arranegemnt |
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DocMorris (selling arrangement) |
Prohibition of sale of pharmaceuticals deemed to be a selling arrangement |
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A punkt |
Austrian prohibition on selling jewellery from the home was deemed a selling arrangement as it affected where the product was sold. |
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Punto Case |
case mirroring b&q case-selling arrangement because it affected when products could be sold |
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De Agostinig |
Prohibition in Sweden of an advert for the magazine called 'all about dinasorus' after the watershed-selling arrangement because it affected how a product can be sold |
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Gourmet |
Swedish total ban on advertising alochol. this was a selling arrangement because it didn't affect the actual product. Court said there was discrimination because consumption of alochol is linked to 'traditional social practices and to local habits and customs.' Foreign products will find it harder to access the Swedish market and will be placed at a disadvantage because Swedish consumers would be more familiar with domestic products than foreign products so will be less likely to buy foreign products without advertising. Key point in this case was that it was a complete ban not a partial ban (in which case they may have decided differently). |
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Commission v Italy (restriction on use) |
Concerned a prohibition on the use of motorcyle and moped trailers on Italian roads. This was not a ban on the product but a ban on the use of the product. Consumers were able to purchase the trailers, but they could not tow them on public highways. Court found that these were non-discriminatory measures that hindered access to he market of an MS. |
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Mickelesson (restriction on use) |
The regulation at issue restricted the use of jet-skis to certain areas only. In practice, this was a sever limitation on the use of jet skis as the area were they could be used were not suitable. The court held that the restrictions on use had a considerable influence on the behaviour of consumers which in turn would affect the access of that product to the market of the MS. |
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Bonnarde (restriction on use) |
Does this influence on consumer behaviour need to be 'considerable'. In this case, the term 'considerable' was dropped. It was held that if a rule influences the consumer behaviour and affected the access of a product to the market of the MS it would fall under Art 34. The latter ruling has caused some uncertainty. This case was decided by a 3 judge camber so does not set a precedent (unlike Mickelsson). |
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Is Keck still relevant? |
Some argue that Commission v Italy and Mickelsson case represent a shift to a market access test however selling arrangements category continue to be applied. |
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Gysbrechts |
Court said that indistinctly and distinctly applicable measures on exports could fall under Art 35. |
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Art 36 Justifications |
Exhaustive list Must not constitute a means of arbitrary discrimination or a disguised restriction on inter-state trade. |
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Commission v UK (turkeys) |
Thatcher G'ment decided to restrict the import of Turkerys just before xmas from rest of Europe except Ireland and Denmark. They were truing to target French imports of turkeys but tried to justify it by saying they were trying to protect the English Turkey population from a disease (despite there hadn't been an outbreak for a few years). Court said this was a discriminatory measure because the justification didn't stand up-it was clear that the g'ment's true intentions was to protect the English market from cheaper French imports. |
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Clinique |
German consumer protection regulations had been relied on to prevent Estee Lauder from using the brand 'clinique' in Germany because it was argued this was misleading to consumers. 'Klinik' in German meant hospital so there were concerns that customers would be mislead to think this was a hospital product. This was a rare case where the court decided the mandatory requirement didn't apply. The CJEU used a proportionality argument by saying the justification was sufficient to prohibit the sale of the product especially as the product wasn't sold in pharmacies and the advertising strategy didn't in any way suggest it would improve your health. |
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Scmidberger |
Demonstration authorised by Austrian authorities which led to temporary closure of Brenner motorway. This was in principle a restriction on FMOG because it was a physical barrier. The restriction was justified by the fundamental rights of freedom of expression and freedom of assembly. Legitimate aim of the demonstration could not be achieved by measures less restrictive of trade |
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Brenner Motorway |
Ban on HGVs using a section of the Brenner motorway because of the pollution that the heavy goods vehicles caused. Justified in principle on environmental grounds and court accepted this justification. However it was held to be disproportionate because Austria had failed to examine the possibility of using measures less restrictive of free movement (e.g. lower speed limit imposed to reduce emissions) |
