Free Movement of Goods - Prohibited and Quantative Restrictions

Measures subject to EU Law reviews

• Legislative - national measures

• Administrative measures

• Non-legislative measures

• Inaction

Comission v France

• Favoured the buying of French presses over other

 Commission v Ireland

• Buy Irish campaign by Government

• Showcases horizontal and vertical effect

• Campaign still exists but now private companies and they cannot be reviewed under article 34

Definition of measure

• Laws, regulations, administrative provisions, administrative practices, and all instruments issuing from a public authority, including recommendations

Quantitative Measures

• No active litigation - due to free movement berween countries and no tariffs left in union

Origin of Art 34-35

• Individual rights vested to individuals allowing them to challenge measures that restrict freedom of the market

• Vertically directive; fundamental freedoms

• Economic right for individuals to challenge national measures

MEQR

• Dassonvile

• Non-discriminatory restriction/ discriminatory restrictions

• Usually through regulatory requirements on production

• Restrictions which puts foreign producers at a disadvantage (dual burden)

Dassonville

Defines MEQRs. Can be discriminatory or non-discriminatory restrictions.

'All trading rules enacted by Member states which are capable of hindering, directly or indirectly, actually or potentially intra communicty trade"

• Are to be consideredas measures having an effect equivalent to quantitative restrictions.

Market access test

• Most recent approach to determine if a provision is a MEQR

• Does the measure in question restrict the access to the domestic market

• Commission v Italy

Commision v Italy

Principle —> Market access test

Held —> National regulations hindering market access for products lawfully produced in other Member States: violate Article 34 TFEU

Facts —> Legislation banned trailers that can be attached to mopeds on safety grounds.

Was not a product requirement or selling arrangement

Non-discriminatory as it applied indistinctly

But indirectly restricted acces to Italian market forTrailer producers. Therefore, caught by Art 34.

Scotch Whisky

• Creation of MUP by Holyrood

• Indistinct and non-discriminatory

• If goods coming from abroad are usually cheaper, this eliminated their competitive advantage 

• Therefore = a MEQR, caught by Art 34

KECK

• Attempt to restrict scope and interpretation of MEEQRS

• Produced a new rule to exclude certain measures from the scope of Art 34

• Excludes selling arrangments

• Distinction between a product requirement (always covered) and certain selling arrangements (outside Art 34 if they apply equally in law and fact.)
  
  

Selling arrangment

• (where/when/how a product is sold)

• Not MEQRs if they apply to all traders and affect domestic and imported products in the same way.

Product requirement

• Something which is inherent to the physical product itself.

• EG, does the butter need to be square or rectangular or advertised in magazines?

• Remain within the scope of Article 34

Article 34 - 35 TFEU

• All the principles relating to imports and exports fall under these articles

• Both directly and indirectly discriminatory measures are covered by these; Cassis de Dijon

*Concept of measure is very broad anything that restricts the three flow of goods between countries can fall under this article

Inaction

: Case C-265/85 Commission v France (Spanish Strawberries) EU:C:1997:595

• French set up blockades on boarder

• Private individuals but Government should've controlled public conduct

• The inaction on events affecting trade was seen as a breach of article 34

Cassis de Dijon

• Authority for mutual recognition and the doctrine of mandatory requirements (rule of reason) allowing justification of indistinctly applicable measures

Facts —> Certain amount of alcohol was needed to call it Cassis in Germany

• Indirectly discriminatory applied equally to all goods in Germany

• Since Cassis was coming from somewhere else this affected goodd coming from outside of Germany

Justifying Restrictions

• Treaty based derogation - Article 36 TFEU, directly discriminatory measures

• Case law based justification - (Cassis) cannot be used for directly discriminatory measures, mandatory requirements/public interest

• Proportionality - Have to recognise a legitimate public interest to justify a measure

Mandatory requirments

▪ Protection of the environment - exception to not challenging direct discrimination public interest can sometimes justify.

▪ Protection of the cinema as an form of cultural expression

▪ Maintenance of press diversity

▪ Protection of animal welfare

▪ Working conditions

▪ Protection of children

▪ Preventing fraud

 

Reverse discrimination

• Internal hinderance to market by Member state

• A measure falling within Dassonville but which operates solely to the disadvantage of domestic production

Example:

• Pricing rules