Lecture 10 - Free Movement of Goods and Market Access Test PDF

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Law of the European Union [Term 2]: Free Movement of Goods Free Movement of Goods: Market Access Test Dassonville Any measure capable of directly or indirectly hindering intra-EU trade will be considered a MEQR – extremely wide definition

Cassis de Dijon Includes indistinctly applicable measures, mandatory requirements and mutual recognition

Keck: Rules about selling arrangements are not MEQR, provided that they do not discriminate in law or fact between domestic traders and traders from other MS Academic Criticism of Keck:  Lack of clarity as to whether previous cases (e.g. Dassonville) had been expressly limited/overruled in part  Too much emphasis on factual and legal equality as the expense of market access – any rules limiting market access ought to be considered MEQR  NB: Deregulatory effect of Free Movement of Goods law; wide interpretation of MEQR reinforces this effect – is this a good thing? C-34-36/95 De Agostini

C-254/98 Heimdienst

C-405/98 Gourmet International

Swedish ban on TV advertising directed at children under the age of 12 Austrian requirement for grocers offering goods for sale on rounds to have a permanent establishment in the relevant administrative district Swedish rules limiting advertising of alcoholic beverages

ECJ emphasises that these rules have a greater actual impact on imports, rather than on domestic products. National rules were therefore held to be MEQR, and would only be lawful if justified by Article 36 or mandatory requirements. Similar development in cases dealing with the use of products:  C-110/05 Comm v. Italy: Italian law prohibited motorbikes towing trailers, including trailers designed to be towed by motorbikes – held to be MEQR, but justified on grounds of public safety  C-142/05 Mickelsson and Roos: For reasons of environmental protection Swedish law prohibited use of ‘personal watercraft’ (i.e. ‘jet ski’) on other waters than navigable waterways, except where the competent authority designated such other waters for use of such watercraft – at the time the case reached the CJEU Swedish authorities had just started procedures for making designations of ‘other waterways’ – held to be compatible with Article 34, provided that relevant designations are actually made

Law of the European Union [Term 2]: Free Movement of Goods

Article 36 TFEU Exhaustive list of grounds, applicable to both QR and MEQR (QR can only be justified by Art. 36). Strict Interpretation, e.g. 

Public Morality - R v. Henn and Darby 34/79: UK prohibition on the import of obscene films and magazines from the Netherlands was justified on the grounds of public morality; in the absence within the UK of a lawful trade in the same goods - 121/85 Conegate Ltd: Ban on import of ‘love love dolls’; no ban on domestic production of comparable goods – therefore the ban on imports was held to be unlawful

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Public Policy and Public Security - 177/83 Ringelhan: ‘Public policy’ cannot include consumer protection - 231/83 Centre Leclerc: Minimum price for fuel set; alleged fear of possible civil disturbance in the absence of such rules / unlawful - 72/83 Campus Oil: Requirement to buy percentage of petrol from Irish refinery at price set by government, perceived need to maintain domestic refining capacity / surprisingly, held to be lawful

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Protection of the Health of Humans, Animals or Plants - 178/84 Comm v. Germany: Beer containing additives not to be marketed – uncertainty about health hazards of additives, high consumption of beer in Germany / held to not be justified - 174/82 Officiers van Justitie v. Sandoz: Dutch ban on muesli bars with added vitamins, with excess consumption of the specific vitamins concerned likely being dangerous / held to be lawful, provided that exceptions are authorized in case of added vitamins meeting nutritional need - C-192/01 Comm v. Denmark: General prohibition of the marketing of food products to which nutrients or vitamins have been added, except where such additions meet a nutritional need of the Danish population; held to be disproportionate infringement of free movement of goods, taking into account failure of Danish government to provide a risk assessment in support of the general prohibition - C-33/01 Doc Morris: Prescription as well as non-prescription drugs not to be sold online – held to be accountable for prescription drugs only

Law of the European Union [Term 2]: Free Movement of Goods -

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C-67/97 Bluhme: Bees not to be imported onto a particular Danish island, except for the brown bee native to that island / justified

Protection of National Treasures possessing Artistic, Historical or Archaeological Value - C-531/07 LIBRO: ‘protection of national treasures’ does not include ‘protection of cultural diversity in general’

Art. 36 grounds must be interpreted strictly

Measures justified through Art. 36 on principle may still be unlawful if they fail the proportionality test

Mandatory Requirements: Cassis de Dijon Indistinctly applicable MEQR can (also) be justified, when they are reasonable and necessary in order to satisfy mandatory requirements, relating in particular to:  Effectiveness of fiscal supervision  Protection of public health  Fairness of commercial transactions  Defence of the consumer – as was considered in Cassis de Dijon 

Protection of the Environment - 302/86 Comm v. Denmark (‘Danish Bottles’): Beverages to be sold only in re-usable containers to maintain a deposit and return system, requirement to use only approved containers – environmental protection = ‘mandatory requirement’; re-usable containers requirement held to be proportionate; requirement to use approved containers held to be disproportionate - C-2/90 Comm v. Belgium (‘Walloon Waste’): Hazardous waste from other MS and other Belgian regions not to be imported into Wallonia region – justified, taking into account the ‘source principle’ (Art. 191(2) TFEU) - C-379/98 PreussenElektra: Feed-in tariff for German-made electricity from renewable sources; openly discriminatory measure / justified - C-320/03 Comm v. Austria: Ban of all heavy lorries from Inn valley cross-border motorway; importance of proportionality / not justified

Law of the European Union [Term 2]: Free Movement of Goods

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Maintenance of Press Diversity - C-369/95 Familiapress: Periodicals containing games or competitions not to be sold in Austria – maintenance of press diversity held to be a mandatory requirement capable of justifying interference with free movement of goods / national court to review whether proportionate, based on a study of the Austrian press market

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Fight against Crime - C-265/06 Comm v. Portugal: Any kind of tinted film not to be affixed to car windows, so as to allow straightforward visual inspection of cars’ interior; road safety and fight against crime held to be mandatory requirements / Portuguese rules held to be disproportionate, given that sufficiently transparent tinted film is available

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Requirement to Protect Fundamental Rights - C-112/00 Schmidberger: Decision by Austria not to ban a demonstration by environmentalists that led to a brief closure of an important cross-border motorway, this was held to be caught by Art. 34 because it impeded trade for the relevant period / the Austrian authorities were held to be within their rights, re-emphasizing the Fundamental Rights which are part of the EU legal order

Member States’ intention to protect fundamental rights may justify decision not to prevent interference with free movement of goods, where interference results from conduct of private-law persons. Proportionality

Measures which in principle can be justified by reference to Article 36 grounds or to mandatory requirements may still be unlawful if they fail the proportionality test Three Steps of Proportionality Test: 1. Measure must be suitable to achieve the end, e.g. protection of health of humans etc. C-333/14 Scotch Whiskey Association v. Lord Advocate 2. Measure must not be more than what is necessary to achieve the end (which will not be the case where less restrictive measures are available to achieve the policy aim)

Law of the European Union [Term 2]: Free Movement of Goods 3. Impact of the measure on intra-EU trade must not be out of proportion to the importance of the policy aim being pursued (‘don’t use a sledgehammer to crack a nut!’) Usually, the CJEU will apply the proportionality test very strictly. Where the case involves a particularly sensitive issue, the CJEU occasionally more lenient:  C-244/06 Dynamic Medien v. Aviles Media: Online sale of ‘anime’ DVD bearing British competent authority’s label indicating permissible target audience; German Law on protection of young person’s prohibits sale of firms not bearing German competent authority’s label about permissible target audience – held to be MEQR / justified on grounds of protecting children, and to be proportionate, provided labelling procedure is straightforward  C-362/02 Omega Spielhallen: Ban of Laserdomes in Germany ostensibly to protect human dignity – surprisingly held to be justified / to avoid clash of CJEU with German Constitutional Court over the appropriate level of protection for human dignity, with human dignity being a core value of the German constitutional order Labelling products is a ‘less restrictive measure’ Grounds for Justification: Scope of Application    

QR – and even more so – any type of MEQR can be justified by Article 36 grounds Only Article 36 grounds may justify QR Need to satisfy mandatory requirements can justify indistinctly applicable / non-discriminatory MEQR There is still uncertainty as to whether mandatory requirements can justify distinctly applicable / discriminatory MEQR: - C-2/90 Comm v. Belgium (‘Walloon Waste’) - C-379/98 PreussenElektra...