EU Lecture 6 Notes Written PDF

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EU Law: Lecture 6 – Article 34 TFEUPreviously covered:  Article 30 – customs duties.  Article 110 – discriminatory taxes.Article 34 – key provision which lays the foundations for the EU single market.Effect of Brexit? Brexit would mean an extra burden under Article 34. Align the regulations or rui...

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EU Law: Lecture 6 – Article 34 TFEU Previously covered:  Article 30 – customs duties.  Article 110 – discriminatory taxes. Article 34 – key provision which lays the foundations for the EU single market. Effect of Brexit? Brexit would mean an extra burden under Article 34. Align the regulations or ruin the economy by imposing extra regulatory barriers. FMoG:  Article 30 TFEU – customs duties/CEEs.  Article 110 TFEU – discriminatory/protectionist taxes.  Article 34 TFEU – quantitative restrictions/MEEs. Article 30 and 110 TFEU deal with national rules/measures that impose an obligation to pay a certain amount of money. All 3 provisions are mutually exclusive. Scrutinising the nature of the law, a rule/measure can only be considered under one of these provisions. Any non-fiscal measures, you would apply Article 34, concerning goods and trade in the EU internal market. Article 34 TFEU: ‘Quantative restrictions on imports and all measures having equivalent effect shall be prohibited between member states’. Distinguishes 2 categories:  Quantitative restrictions.  Measures having equivalent effect. 2/73 GEDDO – ‘Quantitative restrictions are measures which amount to a total or partial restraint of imports, exports or goods in transit’. Purpose of these?  It restricts the quantity of goods allowed onto the market unlike customs duties that allow but increase the price of goods. They are prohibited under Article 34 TFEU.  Usually governments can maintain rules which specify the quantity of good being imported daily. This type of restriction is the most disruptive measure they can take to damage the internal market.  Limit potential competition, encourage people to buy domestic products What are the forms of quantitative restrictions? A quota, which is a limit on the quantity of products that can be imported into the country. Governments can place a complete ban on the import to a country of a given product. These are justified when related to health reasons, for example: drugs, tobacco and arms. 34/79 HENN AND DARBY – A ban on the import to the UK of obscene and indecent materials was found to be a quantitative restriction. Could not be justified by the UK government. Can they be justified? Quantitative restrictions can be justified under Article 36 TFEU. Some national policies can outweigh the free movement of goods principles. They can have a valid reason as to why they should impose the ban. These policies can have justified, valid goals when protecting public health, principles and security.

What is the extent to which Article 36 TFEU can be used to justify the restrictions?  Public policy, morality and security.  Protection of health, animals and plants.  Historic and archaeological value.  Industrial and commercial property. Exhaustive list of grounds. You can only rely on the 10 grounds for justification that are specified in the article itself. You cannot add any more. Article 36 is also applicable to measures having an equivalent effect but there are more grounds for justification. For measures having an equivalent effect, there are a list of judicial measures. 8/74 DASSONVILLE Key case – Dutch Scotch Whiskey case imported to Belgium.  MEE’s were defined in Dassonville, that concerned a ban by Belgium on the import of Scotch whiskey without a certificate of origin (by resellers). Was this prohibited by Article 34 or not?  Ban on the import of Scotch whiskey without a certificate of origin restricted parallel imports. The court found it to be a restriction contrary to Article 34 as it impaired trade in the EU internal market. The product is on the market, you should not be limiting where it can be sold anywhere else. Definition in 8/74 Dassonville: '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 effect equivalent to quantitative restrictions’ Why such a broad definition? The reason for the broad definition was to try and promote inter trade union trade in the internal market. Prohibiting customs duties is not sufficient. This definition would catch any pre-existing archaic rules in member states. Article 34 TFEU does not only prohibit rules that actually hinder free movement of goods, but also those that can potentially have such an effect. What are the Dassonville implications? Potential effect on trade. Scope of Article 34 is broad. This means there is a no de-minimis rule. Even a slight effect on trade, in terms of volume, can be prohibited. C-184/96 FOIE GRAS – Article 34 applies even if a given product is not, at a present time, produced in other Member states. C-67/97 DITLEV BLUHME – Danish prohibition of keeping any bees other than brown bees on Læsø Island. This means that you cannot import any other bees to the same island, meaning a potential effect on trade. Article 34 TFEU: State Measures that can be prohibited:  National rules/laws.  Administrative provisions.  Administrative practices. C-470/03 A.M.G-COS.MET – Article 34 was applicable in the context of remarks made by a Finish government’s expert as regards to the safety of vehicle lifts made in Italy. Consumers and companies could

listen to the interview and be dissuaded on purchasing or using the specifically stated Italian made lifts. Governments must be neutral. 249/81 COMM V IRELAND – Article 34 applied to a non-public body, supported by the Irish government, that encouraged substitutions of imported products. Campaign to encourage people to purchase Irish meat. Intended to limit sale and import of goods from other member states which affected trade in the eyes of the court. There was a link between the government and a non-public body, meaning it was sufficient for the Article to apply. Irish Goods council is an emanation of the state, due to its close links with the Irish government. Irish Goods Council – substantial involvement from the government?  Members were appointed by the government.  Was financed by the government.  Aims and campaign were defined by the government. Can Article 34 can be applied to non-public bodies? Article 34 could also apply to non-public bodies (example: sport/professional bodies) that have regulatory functions similar to a State. Main reason we apply the article if they have similar functions to the state. Does not apply to actions taken by private businesses. C-171/11 FRA.BO – Article 34 applies to a private standardisation body that certifies products (pipes) for the sale. C-159/00 SAPOD AUDIC – “A contractual provision cannot be regarded as a barrier to trade (…) since it was not imposed by a member state but agreed between individuals. What would happen if there was a restriction on trade?  Individual market strategies cannot constitute a restriction of trade (barrier to import) for the purpose of Article 34. For example: if a small shop decided to not stock French wine, there is little impact due to the size of the business. Moreover, consumers have the option of many other retailers that stock it. On the other hand, if many larger businesses refused to stock it, this would cause issues for the internal market as it would be significant enough to affect trade.  Individual choices in supermarkets or restaurants would not mean a restriction to trade (import). C-265/95 COM V FRANCE – Under Article 34, member states are responsible for actions taken by private bodies that obstruct the free movement of goods. French strawberry sellers destroyed Spanish crops which meant a restriction on trade. What does Article 34 TFEU Prohibit?  Distinctly applicable rules.  Indistinctly applicable rules. What are distinctly applicable rules? This category includes national rules/measures that on their formulation impose a different burden (in law and in fact) on domestic and imported products. Examples of distinctly applicable rules:  Rules that require an import licence, which is only imposed on imported goods. o C-54/05 COM V FINLAND – Article 34 prohibits the requirement to apply for a licence in order to import a vehicle as it hinders intra-union trade.  National rules that restrict importers to determine the price of their imported goods.

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o C-531/07 LIBRO – Article 34 prohibits national rules that do not allow book importers to fix a retail price below the fixed retail price. Article 34 also prohibits actions of member states that promote or favours domestic products over imported ones. o 222/82 APPLE & PEAR DEVELOPMENT COUNCIL – A body cannot disparage goods from other member states in the eyes of consumers solely based on their origin. A body however can draw attention to specific qualities or features of a product, even if they are typical of national production. 207/83 COMMISSION V UK – Article 34 prohibits rules that require imported goods to be sold with a designation of origin. Origin marking requirements could result in consumers asserting their prejudices against foreign products. 12/74 COMMISSION V GERMANY – It is only allowed if a product has qualities and characteristics due to being originated in a specific region. Article 34 TFEU: Rules/measures that subject imported goods to inspections and procedures are also prohibited. 154/85 COM V ITALY – Rules making registration of imported vehicles more complicated, longer and costly are MEEs....