#5846 - Free Movement Of Goods - Irish European Union Law

Articles 28-29

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 deep-frozen 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 socio-cultural 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...