p 129 EU law

activity 7.1

a. how has the court of justice broadened the definition and application of article 56 TFEU

b. what are the main grounds on which a member state can derogate from article 56 TFEU . give 2 examples of each.

v. what are the main grounds on which a member state can derogate from article 49 TFEU. give 2 examples of each

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activiry 7.2

identify EU directives

a. what is the distinction between the right of establishment and the freedom to provide services and why is the distinction important in EU law?

b. how has the court of justice broadended or change its focus on non discrimination in protecting service providers. recipients?

p 113 EU law

Q5

in which circs can the test of market access be applied in commission v italy

a. where the keck test has failed?

b. where he measure does not relate to the nature of the good or the method of sale but substantially affects consumers behaviour in a negative way

c. where the state has introduced an indiscriminate and indistinctly applicable measure. THIS ONE

d. where a yet unimplemented directive on the issue purporting to ban the state’s measure has been passed by the EU

question 3 p 112

which of the following fictious breach of movement of goods has no derogation

a. Poland claims that is has blocked imports of croation vodka because of concerns over a recent epidemic affecting E Europe s potato crops but did not block that of slovenia despiee the fact that the WHO judges it more a risk

There is no derogation. phytosanitary health is a proper reason for a derogation but it must be non discriminatory

b. germany has banned the commercialisation of a new type of non lethal weapon used in a paintball type games stating that the realism of the contraption would be a breach to human dignity a core german constitutional belief

this is allowed under the derogation. this is as per the sport halle case.

c. silvio an italian national has had his favourite hair dye banned by govt. the justification advanced is that the importer has strong links with the corsican mafia and in order to fight organised crime their main economic revenues were being shut down as a matter of policy

this is allowed under a derogation because it is in pursuit of a legitimate aim. there is a chance that the link it too tenuous to org crime

d. the uk instates steeper taxes on a revolutionary swedish cure for a specific cancer. the govt claims it is to ensure that quality controls are correctly carried forward and that owing to the highly complex nature of that drug it had to increase the funding of its quality control lab in cheltenham

this tax is discriminatory and not allowed. charges are only for a genuine service to the producer or importer.

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EU law p 112

Q2

which of the following fictitious scenarios fall under the keck exception?

a. france imposes a ban on any wine products not contained in a 75 cl bottle?

No because this is a PR not an SA

b. austria bans any door to door selling of personal insurance.

SA so it is under keck test. This ban is lawful

c. portugal puts a cap on the number of car dealers selling goods with a particular type of selling arrangement.

this is an SA because it is not about the product itself.

d. cyprus decides to heavily restrict the sale of video games with non cypriot age recommendation rating

It is an SA so it is allowed.

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p 111

1. ABC Ltd is the major french producer of goats cheese . it sends a shipment of cheese to a distributor in the UK but the shipment is refused entry at the port of dover. the reasons given by the customs authority for refusing entry are first that the cheese is not labelled in english; secondly that it is packed in cubic containers and therefore does not satisfy uk standards of consumer protection

and thirdly it contains additives that are not allowed in cheese in the UK

advice ABC as to its rights under EU law

Labelling in English is a product requirement and is probably illegal. This is as per Rau. It can only be lawful if it is in pursuit of a legitimate aim and is proportionate

Packing in a certain shape of container is a PR and is also illegal as per Rau. The aim could be achieved by a less restrictive measure.

additives is a PR and is illegal. As per Dassonville what is lawful on one state is lawful in another unless there is a very strong public policy reason such as health

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Q 2 evaluate importance of keck

Criminal Proceedings against Keck and Mithouard is vital. They were prosecuted in 1993 for selling beer in France below the minimum price. This is illegal. There is a Keck exception

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q 3

compare article 36 TFEU with the cassis de dijon mandatory requirements

Cassis de dijon was about French brandy. Germany would not accept it as brandy because the alcohol content was too low.

Article 36 TFEU says that no discriminatory trade barriers are allowed. Goods can be forbidden on public policy grounds such as health, morality, national heritage. MEQR is forbidden

Burden of proof lies with the state seeking to ban the item

Cassid de Dijon requirements are that a good only be banned if it is bad for health or morals and is non discriminatory in law and fact. MEQR is banned even if not discriminatory

Goods are generally allowed in all EU states and EEA.

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p 109 activity 6.5

a in dassonville how are measures of equivalent effect to quantitative restrictions on imports defined?

A measure which makes it harder to sell a good from another EU member state

b identify examples of measures which have been held to constitute measures of equivalent effect.

repackaging margarine

a certificate of origin for whisky

german beer purity law

c. in foie gras explain in fewer than 20 words the basis of the court s rejection of the hypothetical and theoretical infringement argument

french law was v strict on what counted as foie gras otherwise it would be mislabelling and infringing the name of foie gras. The court said this was bogus and MEQR

d. which legal principle is underpinned by the rule of remoteness / identify the examples of imponderables in DIP a case concerning urban planning law restrictions on the opening of new shops

this is about a law not being too remote. The effect of an action can be too remote for a court to consider it sufficient to prevent a party from doing something. Therefore shops must be allowed to be set up.

e. using the bluhme case explain what is meant by the de minimis rule and its relevance article 34.

bluhme wanted to bring a species of bees into denmark. this was illegal

de minimis means it is so minor that it can be disregarded

article 34 of TEU says quantitative restrictions and MEQR are generally not permitted.

f. identify the main difference between the rule of remoteness and the de minimis rule

de minimis is so trifling that it does not count

remoteness – saying an impact is too remote from the action for the action to be unlawful.

g. the cassis de dijon which provision in german law was held to be an indistinctly applicable measure of equivalent effect contracy to article 34

the law about brandy having to have a certain alcohol content.

h. in cinetheque sa was the courts intepretation of the scope of article 34 broad or narrow. explain

french alw banned a film being on video for a year after the film came out in the cinema. the article 34 was held to be narrow. France was allowed this law.

i. in keck which unsatisfactory situation did the court seek to address?

this is about selling beer below the minimum price

the courrt did not address use arrangements. this was cleared up in commission v italy (moped trailers)

j. identify some categories of measures related to selling arrangements

selling arrangements – when it can be sold, where and to whom and with adverts.

k. which product was at the centre of the alfa vita dispute and why was the measure considered to be more product bound than related to a selling arrangement?

frozen baked products. could they be sold in greece by carrefour. MEQR

product because is is about the physical state of the product

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p 109 activity 6.4

doc morris and public health – proportionality

a. identify the justification for the restriction in selling arrangements advanced by german pharmacists assoc

public health. People should not get medicines that they did not need.

b. what must be determined before examining any justification under article 30 EC and why?

is it legitimate? because if it is not then it is unlawful.

c. outline the basis of the proportionality test.

is it the least restrictive way to achieve the aim?

d. what function does a measure taken have to fulfill to be deemed an appropriate measure?

public policy such as health , morality, upholding culture

e. identify how approaches by individual member states can be used to consider the necessity of the national measure

the court can determine whether a legitimate aim is being pursued and if the measure is proportionate.

f. which test is used to examine the proportionality test in the narrow sense

the keck test

g. as applied in the current case which question is asked to determine whether the measure taken by the member state fulfils this test?

does the measure effect goods from the member state and other member states the same in fact and in law?

activity 6.3 p 108

deutscher apotekeverband e V 0800 doc morris NV

a. identify the following info about case

treaty articles . 3 relevant directives

article 28 ec

DIRECTIVES 92/28 2000/31 2001/83

b. identify org aims and obs of the claimant german apoteke verband

the aims were to regulate pharmaceuticals in germany – see that people only attained what they needed.

c. identify the business activity of ducth defendant doc morris nv in particular type of goods it sells, selling arranagements in hollands and relevant authorisations

they sold medicines by post. was licensed in the netherlands.

d. identify 2 types of products which doc morris sells in germany and the selling arrangement

medicines

in germany prescriptions medicines are NOT allowed to be sold

e. identify 2 professions which may be invovled in ensruing a high level of consumer protection for the general public in the advertising of medicines which are available on medical prescription only.

pharmacists and doctors

f. according to german national law do pharmacists protect the general public when they sell?

yes they do by only selling necessaries

g. according to german law on the advertising of meidicne products identify 3 examples of types of adversiting of mecial products that are illegal?

prescription medicines are not advertised

h. outline the main submission of the german apoteke verband in the proceedings in the german court?

i. outline the main submisions on the main proceedings in the german court

it was argued that this was a measure to protect public health and was proportionate in pursuit of a legitimate aim.

j. german court the landgericht frankfurt am main referred 4 questions for a preliminary ruling which justification for a national prohibition is raised in this context?

is the advertising ban permissible and is mail order ban allowed?

is this an MEQR. ban on mail order sale of NON prescription medicines is illegal

ban on mail order sale or PRESCRIPTION products is LEGAL.

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p 108 activity 6.2

consider if rules can be challenged. fiction

follow 2 steps

which type of rule it is

is the rule legal or prima facie illegal? in the matter will the member state be able to justify it under artucle tfeu under cassis de dijon mandatory requirement? if so what would the member state have to prove accoding ti the tests laid down in keck and gourmet int

a. milk must be packaged in recyclable

PR

could be legal but it might discriminate against goods from other states. making new packaging might be uneconomic eg rau

b. fruit conserve must contain 60% fruit

PR

probably illegal like cassis de dijon.

c. wine must bear label with alcohol content

SA

prima facie legal. reasonable about health proportionate

d. all imported poultry mst be inspected

SA

reasonable and public health proportionate

e. tobacco can only be from licensed premises

sa

reasonable and about health proportionate

f. advertisment sfor alcoholic drinks on street hoardings are forbidden?

SA

primae facie legal. proportionate about public health

other types of advertising are allowed so gives new products a chance.

p 97 activity 6.1

a. what is the difference between free movement and customs union?

people can move in one. in the other goods can move without any charges or rules banning items

b. what is a quantitative restriction and what is a measure having equivalent effect to a quantiatative restriction? 2 examples

a quantitative restriction is a measure that reduces the number of items that can be imported

MEQR is a measure that does not specifically reduce the number of items that can be brought in but in effect limits the number.

c. what is the difference between a discriminatory and an indistinctly applicable measure?

discriminatory is when it treats goofs from other EU states differently – it is a hindrance

indistinctly applicable – these are in discriminatory in law but in practice they have the effect of making it harder to market goods from other EU states.

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3. in buy irish why was it relevant that members of the management committee of the irish godos council were appointed by the govt? commkssion v ireland

why was the measure considered by the ecj to breach article 34 tfeu?

4. if a group of demonstrators tries to block the free movement of goods by direct action is there a breach of article 34 tefu?

5. what is the difference between a discriminatory and an indistinctly applicable measure?

6. are the following rules discriminatory or indistinctly applicable?

a. margarine must be packaegd in cube shapes

D

b. importation of obscene materials are banned

indistinct

c. cheese must contain no preservatives?

indistinct

d. cheese must bear label stating fat content?

indistinct

e. all imported beef must be inspected?

D