Free Movement of Goods EU Law

article 26

specifies the free movement of goods as an essential element of the internal market

article 26(2)

“the internal market shall comprise an area without internal frontiers In which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the treaties”

article 34

prohibits, between Member States, quantitative restrictions (QRs) and measures having equivalent effect to quantitative restrictions (MEQRs) on imports;

“quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states”

Article 35

prohibits, between member states, quantitative restrictions, and measures having equivalent effect to quantitative restrictions on exports;

"“quantitative restrictions on exports and all measures having equivalent effect shall be prohibited between member states”

article 36

provides for derogation from the article 34, 35 prohibitions

will not apply to states’ restrictions on imports and exports if such restrictions can be justified on one of the specified rounds article 36

articles 101 and 102

competition rules

together with the rules relating to to the free movement of goods constitute the means to achieve a unified internal market which functions efficiently and which allows the Union to compete on a global scale

what are ‘goods’?

CJEU - physical objects which can be valued in mon ey and can be the subject of commercial trasnactions

Commission v Italy (art treasures)

R v Thompson (coins)

Apple and Pear development council

concerned a body which enjoyed public law privileges

Commission v Ireland

concerned about body set up by government to promote Irish Goods

Commission v Germany

concerned a labelling scheme operated by a non-governmental body

AGM

concerned opinions expressed by a public official

Commission v France

concerned about failure to act on part of the state to prevent actions of private parties

schmidberger

concerned positive obligation on the state to prevent private parties from obstructing free movement

what is a QR

any measure which limits the import/export of goods by referenced to amount or value

CJEU defined QR as ‘any measures which amount to a total or partial restraint of imports, exports or goods in transit Geddo v Ente

R v Henn and Darby

ban on pornogrpahic material

Ditley Bluhme

quota systems

International Fruit Company

Import/Export license requirement

what is a MEQR

distinctly applicable - measures which do not apply equally to domestic and imported products ie they distinguish overtly between imported and domestic products

indistinctly applicable - measures which apply equally to domestic and imported goods ie they apply without any formal distinction as to the national origin of the goods

CJEU definition of MEQR in 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 equivalent effect to quantitative restrictions”

examples of distinctly applicable measures caught by article 34

national marketing campaigns (Commission v Ireland)

Import bans (R v Henn & Darby)

Border controls/inspections (Simmenthal)

origin-making (Commission v Ireland)

examples of indistinctly applicable measures caught by article 34

Cassis de Dijon

The Margarine Case

Casses de Dijon

1. principle of mutual recognition - once goods have been lawfully marketed in one MS they are free to be marketed in any

2. mandatory requriements doctrine - exceptions. non exhaustive

mandatory requirements doctrine examples (Cassis de Dijon)

• environment (Commission v Denmark)

• national, cultural, social values (Cineteque case)

• fundamental rights (Schmidtberger case; protest, road)

what will the court consider when a justification is based on the cassis doctrine?

• genuineness of member state

• proportionality of the measure

• in light of existing knowledge

Commission v Germany

Keck

concerning indistinctly applicable measures, the court in Keck introduced a distinction between:

1. provisions laying down requirements that products have to satisfy

2. provisions restricting or prohibiting certain selling arrangements

number 2 are no longer MEQRs

why was Keck criticised?

Advocate General Jacobs

• rigid distinction is overly formalistic and inappropriate

• introduction of a discrimination test is inappropriate

• market-access test would be more appropriate

Case 416/00

trouble using Keck formula as can’t always easily distinguish between ‘selling arrangement’ and ‘product requirement’

Case 110/05

market access test > Keck approach

DlP SpA case

• national measure’s restrictive effect was ‘too uncertain’ and ‘too indirect’ for it to be regarded as hindering MS trade

article 36 justifications (exhaustive list)

• public morality, public policy, public security

• protection of health and life of humans, animals or plants

• protection of national treasures possessing artistic, historic or archaeological value

• protection of industrial and commercial property

2 part test for justifications under article 36

1. is the measure suitable to achieve a legitimate aim?

2. is the measure necessary to achieve that aim or are less restrictive means available?

• must not ‘constitute a means of arbitrary discrimination or a disguised restriction on trade between MS

Facts of Cassis de dijon

• fruit liqueur produced in francs at 15-20%

• german law requires fruit liqueurs to be 25%+

• German importer challenges ban

• court found the ban was a QR

1. is there a good?

there must be a product with monetary value (commission v Italy)

2. is there a cross-border element

if no, article 34 does not apply

3. is the measure attributable to a member state?

State encouragement counts (buy Irish case)

4. is there a quantitative restriction?

(Geddo)

• bans, quotas, import limits (R v Henn and Darby)

5. is there an MEQR?

• dassonville formula (all trading rules capable of hindering, directly or indirectly, actually or potentially, intra-EU trade)

6. what type of MEQR is it?

1. product requirements - article 34 breach

2. selling arrangement - apply Keck test

• does it apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other MS

• if yes, outside of article 34

• if no, breach

3. use of goods - if the rule hinders market access it’s article 34 breach (Commission v Italy)

7. is article 34 infringed?

• hinders market access?

• falls within QR or MEQRs?

presumed to be a breach of article 34 and the burden shifts to the MS to justify it

8. can the measure be justified through article 36?

1. public morality, public policy, public security

2. protection of health and life of humans, animals, or plants

3. protection of national treasures possessing artistic, historical or archaeological value

4. protection of industrial and commercial property?

9. can the measure be justified by the Cassis test? (for indistinctly applicable measures only)

1. ‘mandatory requirements’ doctrine

10. is the measure proportionate?

as long as it does not constitute a means of arbitrary discrimination or a disguised restriction on trade and is proportionate

Geddo case

defines QRs

Walter Rau

product requirement MEQR IDAM

Trailers case

use of product MEQR IDAM

de Augostino

market access as key test MEQR IDAM

Hunermund

when applying Keck (selling arrangements), it’s outside article 34 if there is no discrimination between foreign and national products.

Gourmet

when applying Keck (selling arrangements), it is a breach of article 34 if there is discrimination between foreign and national products

Scotch Whiskey case

proportionality is a 2 step test

1. is there a legitimate aim connected to the measure

2. is there a less restrictive way to achieve the aim

Dutch vitamins

• public health

• there must have been a significant risk assessment

• MS can’t just assert claims, must have researched

Dufar

burden of proof is on member state

Sandos case

• public health

• where there’s doubt about something in science the court would give sufficient leeway to the state

• precautionary principle

• court is most likely to defer to the member state to act in the best interest of their population