Free Movement of Goods

1
Free Movement of Goods

• Article 28 TEC
• Quantitative restrictions on imports and all
  measures having equivalent effect shall be
  prohibited between Member States.
• Article 29 TEC
• Quantitative restrictions on exports, and all
  measures having equivalent effect, shall be
  prohibited between Member States.

Nick Gaede
2
Free Movement of Goods

• Dassonville case, p. 478
• Facts
• Belgium requires certificate of origin from
  exporting country
• Scotch Scotland to France to Belgium
• Certificate from France not from Scotland
• Court Jurisdiction Art 234
• Issue Does this violate Art 23?
• Decision Yes Free circulation

3
Free Movement of Goods

• Dassonville case, p. 478 (contd)
• Rationale Measures having equivalent effect are
• All trading rules
• Capable of hindering intra-community trade
• Directly or indirectly
• Actually or potentially (5)

4
Free Movement of Goods

• Para 2(l) of Directive 70/50
• Discuss Note 1 page 478

5
Free Movement of Goods

• Article 30 TEC
• The provisions of Articles 28 and 29 shall not
  preclude prohibitions or restrictions on imports,
  exports or goods in transit justified on grounds
  of public morality, public policy or public
  security the protection of health and life of
  humans, animals or plants the protection of
  national treasures possessing artistic, historic
  or archaeological value or the protection of
  industrial and commercial property. Such
  prohibitions or restrictions shall not, however,
  constitute a means of arbitrary discrimination or
  a disguised restriction on trade between Member
  States.

6
Free Movement of Goods

• Commission v. Germany, p. 499
• (Public Health)
• Facts
• Germany requires beer be made of barley, hops,
  yeast, water
• Other MS used rice and other cereals and
  additives
• Court Jurisdiction Art 226 TEC
• Issue Does law violate Art 28?

7
Free Movement of Goods

• Commission v. Germany, p. 499 (Public Health)
  (contd)Decision
• Violates Art 28
• But does Art 30 apply protection of health?
  - No
• Rationale
• Exception is limited
• Exception must be shown to be actually
  necessary
• Proportionately prohibition vs. authorization
  (46/47)
• Burden on MS (Germany)
• Key Fact 49

8
Free Movement of Goods

• German
• Scientific uncertainty, then for MS to decide
• Additives dangerous to health
• Germans drink more beer
• Therefore we have made a valid decision to
  protect health

• Commission
• Presumptuous if ok in other MS, Germany to accept
• Burden on Germany to prove
• Disproportionate Additive rules on soft drinks
  less restrictive

9
Free Movement of Goods

• Compare with Sandoz case
• Dutch law prohibits import of food stuffs with
  addition of vitamins without government approval
• Imported German health bars with vitamins legal
  in Germany into Netherlands
• Sandoz charged criminally Article 234 reference

10
Free Movement of Goods

• Compare with Sandoz case (contd)
• Violates Article 28 TEC What about Article 30
  exception for protection of health?
• BUT Article 30 strictly construed and MS measure
  must be proportional
• Burden
• MS can ask importer to produce information
• MS must itself assess the relevant information

11
Free Movement of Goods

• Cassis de Dijon case, p. 508
• Compare to Dassonville case
•  9 defense of the consumer
• Page 511 Any product lawfully produced and
  marketed in one Member State must, in principle,
  be admitted to the market of any other Member
  State. A corollary is that a States commercial
  or technical rules may not take an exclusively
  national viewpoint.

12
Free Movement of Goods

• Commission v. UK case, p. 513 (consumer
  protection)
• Indication of national origin for consumer
  protection
• How does this inhibit trade?
• Compare with Hunt (US) case
• Cost of label UK case vs cost to repackage and
  label USA (Hunt) case
• US laws do require notice of origin made in
  Taiwan vs. Change of marketing practices

13
Free Movement of Goods

• Commission v. UK case, p. 513 (consumer
  protection) (contd)
• Compare with Cassis de Dijon case
• Cassis de Dijon Label suggests Germany could
  require label as to alcohol content
• UK no label of origin, in part because of cost
  this is foolishness
• Note 3 Commission v. Ireland case

14
Free Movement of Goods

• Keck case, p. 522
• (consumer protection)
• Facts
• Keck selling French beer below cost
• Violates French law cannot sell below cost
• Court Jurisdiction Article 234
• Issue Did French law violate Article 28 free
  movement of goods?
• Decision No

15
Free Movement of Goods

• Keck case, p. 522 (consumer protection) (contd)
• Rationale
• 11 Repeat Commission analysis of Cassis de
  Dijon
• French prohibition purpose not to regulate trade
• Even though may restrict volume of trade
• 14 The real reason too many case
• 16/17 Selling arrangements

16
Free Movement of Goods

• Dassionville to Keck
• Dassionville All trading rules, direct or
  indirect
• Cassis de Dijon If ok in MS A then ok
  everywhere
• Keck Selling arrangement modes of marketing
  are ok, provided apply to all affected traders
• Note 5, page 524 Sunday trading law in Italy
  large firms vs small firms

17
Free Movement of Goods

• Consumer Protection
• Product related rules vs. Marketing rules
• Compare Mars case (p.525) with Clinque Lab case
  (p.527)
• Does Mars 10 deceive customers?
• Does requiring use of name other than Clinque
  create obstacle to trade?
• Note 3, page 528
• Note 4, page 529
• Freedom of press
• Reasonable protection from rich foreign
  publishers

18
Free Movement of Goods

• Commission v. Greece, p. 530
• Facts
• Court Jurisdiction
• Issue
• Decision
• Rationale
• Compare to Belgium car case No Belgium car
  manufactures heavy tax on new cars much smaller
  tax on used cars
• What if Belgium passed law that only Belgium used
  car dealers could sell new imported cars?

19
Free Movement of Goods

• Article 31 (paragraph 1) TEC
• Member States shall adjust any State monopolies
  of a commercial character so as to ensure that no
  discrimination regarding the conditions under
  which goods are procured and marketed exists
  between nationals of Member States.
• The provisions of this Article shall apply to any
  body through which a Member State, in law or in
  fact, either directly or indirectly supervises,
  determines or appreciably influences imports or
  exports between Member States. These provisions
  shall likewise apply to monopolies delegated by
  the State to others.