Free movement of goods - consolidated

Important articles

Article 28

Article 29

Article 30

Arts Treasure Case - what is a good

‘products which can be valued in money and which are capable of forming the subject commercial transactions’

What is a customs duty - Statistical Levy + Diamond workers

‘any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect,’

‘even if it is not imposed for the benefit of the state, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product,’

Internal Taxation

Prohibited under article 110 TFEU

Quantitative Restrictions & MEEQRS articles

Article 34 TFEU (imports)

Article 35 TFEU (exports)

Geddo Case

defines a quantitative restriction as ‘any measure of a member state that restraints the import, transit or export of a certain good, according to quantity or value’

Dassonville formula

All trading rules

enacted by Member States

which are capable of hindering

• Directly or indirectly

• actually or potentially

• intra-[union] trade

are to be considered as measures having equivalent effect to quantitative restrictions

Selling arrangements

‘exit route’ from analysis - Keck + Mithouard

Keck v Mithouard

Regulations re the characteristics of goods are still covered by Article 34 TFEU

Regulations re certain selling arrangements are no longer covered by article 34 as they

• apply equally to all traders

• have the same effect on imported and domestic goods

Familiapress case

‘even though the relevant national legislation is directed against a method of sales promotion, in this case it bears on the actual content of the products, in so far as the competitions in question form an integral part of the magazine in which they appear

• overriding requirement in addition to cassis, preservation of the variety of the media

Decker case

restraint on the free movement of goods as the import of the glasses was hindered.

Possible justification of the heath system of a small country was accepted, but did not apply in this case

• overriding requirement in addition to cassis

Conformity Test

1. Dassonville formula

2. Keck, measure is re product characteristics (not re circumstances of sale, unless discriminatory)

3. Justification
   - article 36, OR
   - mandatory requirement - Cassis

4. Proportionality

Not guaranteed but very likely to be allowed if pass the test

Mandatory requirement case

Cassis De Dijon

Cassis De Dijon

‘Obstacles to movement must be accepted in order to satisfy mandatory requirements relating in particular to’

• the effectiveness of fiscal protection

• the protection of public health

• the fairness of commercial transactions

• the defence of the consumer

move on to a non-exhaustive list of ‘overriding requirements’

• only non-discriminatory +

• proportionate measures

Article 36 TFEU

exhaustive list of general principles of justification

Public Morality Cases

Henn + Darby

Congate dolls

Henn + Darby

import ban on morality is justified as it is for each MS to determine the standards of public morality

Conegate (rubber dolls)

MS may not rely on grounds of public morality to prohibit the import of goods from other MS when its legislation contains no prohibition on the manufacturer or marketing of the same goods on its territory

Public Policy Case

Kohl

Cullert v Centre Leclerc

Kohl

Public Policy Case

Strict interpretation of the justification must be made in its own terms

Cullert v Centre Leclerc

French legislation imposed minimum retail prices for fuel, claiming without these there would be civil unrest.

CJEU said that France has not shown that changing the legislation would have consequences on law and order and that it would not have the resources to deal with it.

Public Security

Campus Oil

• measures adopted can be justified only if they are such as to serve the interest which that article protects and if they do not restrict inta-community trade more than is absolutely necessary

• article 346 TFEU + article 347 TFEU

Public Health

Sandoz (muesli bars)

Poultry Meat

Sandoz (Muesli Bars)

ECJ may have to determine if a public health claim is sustainable in circumstances where there is no perfect consensus on the scientific or medical evidence of certain substance.

No EU legislation to prove the claim that the added vitamins were harmful to health.

In the absence of EU law, it is for the MS to decide upon the appropriate degree of protection

• Proportionality

Poultry Meat case

The ECJ will closely scrutinise this measure to determine whether the protection of public health is the real purpose behind the MS action, or whether it was designed to protect domestic products.

Buy Irish Case

the measure needs to be a state measure

the measure does not have to be legally binding to be considered an MEEQRS

When the acts of a private entity are attributable to a state they are also covered by MEEQRS provisions

French Framers

Acts of private persons or entities are also attributable when the State has a duty to stop them

Commission v Denmark

Certain packaging measures were accepted but only proportionate