Eu Law - European Union

Problem Question Notes

1. Isita a.

b.

1. Is the a.

b.

1. Is the a.

b. c.

d.

e.

restriction on imports or exports?
On imports = Article 34 TFEU: ‘Quantitative restrictions on imports and all measure having equivalent effect (MEEQRs) shall be prohibited between MS’ On exports = Article 35 TFEU: ‘Quantitative restrictions on exports, and all MEEQRs shall be prohibited between MS’

restriction a quantitative restriction?
Quantitative restrictions are defined in Geddo as ‘measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit’.

i. Complete bans on imports of a particular product is a quantative restriction (Henn v Darby)

Can the measure be justified under the Article 36 derogations + is it

proportionate? measure an MEQR?

MEQRs are defined in Dassonville as ‘all trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra- community trade’.
Distinctly applicable (different burden in law and fact)

Product requirements (same burden in law, different in fact)

1. Directive 70/50 (no longer in force, but used as early guidance for

the definitely of indistinctly applicable measures)🡪‘shape, size, weight, composition, presentation, identification or putting up and which are equally applicable to domestic and imported products’

1. Familiapress: a product requirement requires physical alteration to the imported product

Any other measures which hinder market access.
i. Indistinctly applicable product use rule (Commission v Italy

(Trailers))🡪held that prohibition on USE of a product influences consumer behaviour and hence access to market since consumers will not buy the product. It prevents demand and hinders importation, and therefore is an MEQR unless it can be objectively justified.

Can it be justified under the Article 36 derogations or mandatory

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requirements (Cassis) + is it proportionate?
4. Is the measure a selling arrangement? (Only applies to indistinctly applicable

measures.)
a. In Keck, the CJEU held for selling arrangements there is a rebuttable

presumption that such measures do no fall within the scope of Article 34 TFEU, provided they apply equally in law and in fact to all traders.
i. Dynamic selling arrangements (i.e. marketing, advertising)

1. De Agnostini: The court found that the Swedish ban on TV advertising directed at children under the age of 12 and commercials on skincare products did not fall under Article 34. However, if the national court found an unequal burden in law or fact, it would be caught, and would then have to be justified under art 36 or a mandatory requirement. De

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Agostini stated that television advertising was the only effective form of promotion enabling it to penetrate the Swedish market since it had no other advertising methods for reaching children and their parents. An outright prohibition, applying in one Member State, of a type of promotion for a product which is lawfully sold there might have a greater impact on products from other Member States.

2. Gourmet International: The court stated that in the case of products like alcoholic beverages, the consumption of which is linked to traditional social practices and to local habits and customs, a prohibition of all advertising directed at consumers in the form of advertisements in the press, on the radio and on television, the direct mailing of unsolicited material or the placing of posters on the public highway is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are instantly more familiar.

1. Static selling arrangements (i.e. opening hours, types of premises that can sell products)

1. Tankstation: The court held that national rules that provided for the compulsory closing of petrol stations were not caught by Article 34, as the rules related to selling arrangements that were applied equally to all traders.
2. Punto Casa: The court reached the same conclusion in relation to Italian legislation on Sunday closing of retail outlets.
3. Hundermund: The court held the rule prohibiting pharmacists from advertising para-pharmaceutical products they’re allowed to sell was not caught by the ambit of Article 34 as the rule was not directed towards intercommunity trade and did not preclude traders other than pharmacists from advertising such goods and applied evenly between traders.
4. Commission v Greece: The court held that restrictions on the kinds of retail outlets from which certain goods can be sold was a selling arrangement.

1. If the presumption can be rebutted (deemed to not be a selling arrangement), can the measure be justified under Article 36 or the mandatory requirements (Cassis) + is it proportionate.
2. If it cannot be justified, go to the market access test: does the measure prevent or (substantially) hinder market access? If so, breach unless justified, if not, no breach.

5. Principle of mutual recognition

1. Mutual recognition means that, in the absence of Union harmonisation

measures, goods lawfully manufactured and sold in one MS can move freely

throughout the EU regardless of standards.

1. Mutual recognition is subject to the ‘mandatory requirements’. The list is

not exhaustive, and provides derogations that are broader than Article 36.

1. They are:

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i. Effectiveness of fiscal supervision ii. Protection of public health

1. Must provide evidence of a genuine health risk (San Jose Scale)

iii. Fairness of consumer transactions iv. Defence of the consumer