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Free Movement Of Goods Notes

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Articles 28­29 Article 28EC Quantitive restrictions on imports and all measures having equivalent
effect shall be prohibited between Member States Article 29EC Re Exports Article 30EC Exceptions in cases of

• public morality, policy, security

• Human, animal, plant health

• National treasures

• Industrial and commercial policy Community Communication [1991] OJ C 270 Test for 'substantial difference' should
refer to consumer expectations, Codex Alimentarius, Member State rules and methods of
composition and manufacture. Dassonville (ECJ 1974) Facts

• The reference arose from criminal proceedings against a group of Belgian traders
who had imported scotch whisky from France without having obtained a
certificate of origin from British customs. Issue

• Free Movement of Goods - MEQRs Judgment

• All trading rules which directly or indirectly, actually or potentially hinder intra­
community trade are MEQRs.

• Restrictions such as this, purporting to ensure the authenticity of products will be
MEQRs unless they are reasonable and the means of proving authenticity are
accessible to all community nationals.

• Such measures must not draw arbitrary distinctions or constitute disguised
restrictions.

• This case involves a means of proof which is disproportionately difficult for
importers who have not imported the product directly - thus it is an MEQR. Cassis (ECJ 1978) Facts

• The plaintiff in the reference case wished to import the alcoholic drink 'Cassis'
into Germany but was refused as German law required that drink of that variety
have a higher alcohol content. Issue

• MEQRs Judgment

• Until the introduction of Community legislation in this regard, controls on the
marketing of alcoholic drinks are the responsibility of the Member States - any
interference with trade created by these measures are permissible in so far as they
relate to:

• effectiveness of fiscal supervision

• protection of public health

• fairness of commercial transactions

• defence of consumers That low alcoholic beverages create a greater tolerance for alcohol is not an
excuse - lots of weaker alcoholic beverages are available on the German market
and high alcoholic drinks are generally diluted anyway. The consumer protection objective can be achieved through appropriate labelling. As the justifications offered are not of sufficient importance to override the
principle of the free movement of goods and constitute an MEQR then the
national law is incompatible with the Community Law.

The regulatory 'race to the bottom'
argument was not addressed. Deserbais (ECJ 1986)

Facts

• The reference arose from criminal proceedings against an importer who had
marketed as 'Edam' a variety of cheese which did not meet the legal definition of
Edam under French law.

• The cheese had been imported from Germany where it was legally marketed as
Edam. Issue

• MEQRs Judgment

• Any MEQR must relate to a pressing objective in the realm of consumer
protection etc. to be compatible with Article 28EC.

• Where a cheese has been lawfully produced and marketed under the same generic
name but different minimum fat content in another Member State and the
consumer is provided with adequate information in this regard, then it would be
contrary to Article 28EC not to allow the cheese to be marketed under that name
in the Member State into which it has been imported. Smanor (ECJ 1988) Facts

• The reference arose out of a case in which Smanor were compelled to relabel their
frozen yoghurt product as "deep frozen fermented milk" because it was deep
frozen Issue

• MEQRs - Measures relating entirely to internal trade Judgment

• As such products are produced and marketed in other Member States, there is a
possibility (though it has yet to occur) that the measures will in future amount to
an MEQR.

• All restrictions which directly or indirectly, actually or potentially intra­
Community trade are MEQRs - thus although the prohibition does not preclude
importation, it may impede trade between states.

• Member States may restrict trade, inter alia, in the interests of consumer
protection or public health but the means must be proportionate to the aim and the
most minimal restriction available must be chosen.

• As the marketing but not the sale of the product is prohibited the public health
justification fails.

• The position would be different only if the product once deep­frozen no longer
had the characteristics which the consumer expected from yoghurt.

• As the Codex Alimentarius and the national rules of Member States consider the

presence of live bacteria to be a determining aspect of yoghurt and the deep
frozen product has similar levels of such bacteria then appropriate labelling would
be a more proportionate response and the national law is incompatible with Art
28EC. It is the responsibility of the national courts to decide whether the difference is
substantial enough to justify the imposition of a different description. Gemany & Denmark v Commission (ECJ 2002)

Facts

• The applicants asked the court to annul a regulation which stated that 'feta' was
indicator of geographic origin rather than a generic name, as being an MEQR. Issue

• MEQR - Geographic Indicators Judgment

• The label 'feta' appears to be a geographic indicator rather than a generic label:

• the production of feta, though it occurs in other countries, remains
concentrated in Greece

• the consumption of feta is mainly concentrated in Greece

• Greek consumers consider feta to be a geographic indicator and it is marketed
as having links to Greek culture etc in other Member States - consumers
could be misled by cheese marketed in such a way

• Thus the regulation was legitimate. Rau (ECJ 1981) Facts

• The reference arose from a case whereby a German seller sold margarine in cone­
shaped tubs to a Belgian buyer.

• Under Belgian law margarine could not be sold in such tubs. Issue

• MEQR - Restriction on the shape of packaging Judgment

• Proportionate restrictions relating to consumer protection are permissible as long
as they constitute the least restriction necessary to achieve the objective.

• In light of the fact that this rule could preclude the use of certain channels of
distribution or increase the cost of packaging, it is an MEQR.

• The protective effect of this rule is seen in the fact that there is no margarine of
foreign origin on the Belgian market.

• While this measure may help consumers differentiate between butter and
margarine, the objective could also be achieved by requiring appropriate labelling.

• Thus the rule is contrary to Article 28EC. Piagame v Peeters (ECJ 1989) Facts

• The plaintiff's in the reference case challenged a Belgian which, purporting to
implement a directive, required that the labels on products at least contain the
language of the linguistic region in which the product is marketed. Issue

• MEQR - Language requirements

Judgment

• The relevant directive required that labelling include a language easily understood
by purchasers, unless other measures have been taken to ensure that the consumer
has been informed.

• The directive's aim was to harmonise the national laws of Member States and for
that reason the requirements were limited to languages which could be easily
understood and only where no other measures had been taken to inform the
consumer.

• Thus the exclusive requirement of a specific language without allowing for a
language easily understood or other methods of informing consumers constituted
an MEQR and a contravention of the directive. Cinéthéque (ECJ 1984) Facts

• French law precluded the publication of video version of a film within 12 months
after the release of the film.

• The reference case involved the distribution of a video which was simultaneously
playing in the cinema. Issue

• MEQRs - Selling Arrangements Judgment

• The measures in question seek to increase the profitability of films and does not
seek to prefer national to imported videos.

• The measures impede trade where different rules are in force in different Member
States, but as it pursues a legitimate objective (incentivise the production of films)
and is proportionate to that objective it is not contrary to Article 28EC. Torfaen BC v B&Q (ECJ 1988) Facts

• The defendants in the reference case were charged of breaking a national law
which made it an offence to sell most products on a Sunday.

• This had the the effect of reducing B&Q's sales, 10% of which were made up of
goods imported from other Member States. Issue

• MEQRs - Selling Arrangements Judgment

• In principle this scenario does not make imported goods more difficult to market
than domestic products.

• However such a measure must still serve a legitimate objective and the means
chosen must not exceed what is necessary to achieve the objective.

• The purpose of the restriction is to have working hours arranged so as to reflect
national and regional socio­cultural characteristics - this is not currently a matter
for Community law and it does not seek to regulate trade between Member States.

• The national court must decide whether the measures exceed what is necessary in
the circumstances. Keck (ECJ 1993) Facts

• Keck were prosecuted by the French authorities for contravening a national law
which made it an offence to resell any product in its unaltered state at a price

lower than its purchase price. Issue

• MEQRs - Selling arrangments Judgment

• Obstacles to the free movement of goods which are the consequence of applying
to goods from other Member States requirements to be met by such goods are
MEQRs.

• Where they apply to national and imported products without distinction they will
be MEQRs unless there is a public­interest objective taking precedence over the
free movement of goods.

• National provisions relating to certain selling arrangements are not MEQRs so
long as they affect imported and national products in same way both in law and
fact and treat all traders in the national territory in the same way. Punto Cassa (ECJ 1993) Facts

• The reference case involved the prosecution by the Italian authorities of two
supermarkets for infringing Sunday trading rules. Issue

• MEQRs - Selling Arrangments Judgment

• Restrictions or prohibitions on certain selling arrangements are not such as to
"directly or indirectly, actually or potentially impeded intra­Community trade"
provided they apply to all traders operating within the national territory and affect
in the same manner, in fact and in law, imported and national goods.

• This is because when those conditions are fulfilled, imported goods are not any
more difficult to market than domestic goods. Familiapress (ECJ 1995) Facts

• The reference case involved the prosecution by the Austrian authorities of a
German publisher for running a crossword competition with cash prizes in their
magazine.

• The legislation was designed to prevent newspapers using this kind of device as a
sales promotion. Issue

• MEQR - Whether a restriction on selling arrangements Judgment

• As the competition is an integral part of the magazine, the restriction does not
concern itself with selling arrangements as per Keck.

• As it requires traders to alter the content of the periodical it is in principle capable
of constituting an MEQR.

• The need to maintain diversity of the press, as a fundamental right in the ECHR
and Community Law, could constitute an objective of overriding importance.

• The measures adopted must be proportionate to the objective and there must be no
less restrictive measures available - thus the national court must examine A)
whether publishers which offer these games are in competition with smaller
publishers who are unable to match their stakes and B) whether the competitions

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