Term
| Very generally, what do articles 34, 35 &36 concern? |
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Definition
| Non-fiscal barriers to the free movement of goods |
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Term
| Very basically, Article 34 prohibits... |
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Definition
| measures which restrict imports from other member states |
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Term
| Article 34 binds who in what way?? |
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Definition
MEMBER STATES (+ CITIZENS)
PUBLIC BODIES
QUASI-PUBLIC BODIES (R v Royal Pharmaceutical society)
Article 34 binds the Member states and prevents them from introducing measures which restrict imports from other Member states... NOTE...
Member states are also liable for the actions of their citizens which might restrict imports from other member states - Commission v France (The Spanish Strawberries case) |
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Term
| Commission v France (The Spanish Strawberries case) |
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Definition
MEMBER STATE ALSO LIABLE FOR CITIZEN'S BREACHES OF ARTICLE 34
The french government was found liable under article 34 for not taking adequate measures against French farmers who had for many years violently sabotaged imports of spanish strawberries |
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Term
| R v Royal Pharmaceutical Society of Great britain, ex Parte Association of Pharmaceutical Importers |
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Definition
| Article 34 applied to measures adopted by the body responsible for regulating the pharmaceutical profession in the UK (quasi-public body) |
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Term
| In what case were Quantitive Restrictions (QRs) defined by the CJ? |
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Definition
| Geddo v Ente Nazionale Risi |
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Term
| In Geddo v Ente Nazionale Risi, how does the CJ define QRs? |
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Definition
| QRs are... measures which amount to a total or partial restraint... of imports, exports or goods in transit' |
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Term
| Mandi's common sense understanding of QRs |
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Definition
| Things which are explicit in limiting the imports... e.g. explicit bans on imports, or quotas on imports. |
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Term
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Definition
| UK made an outright ban on the importation of pornography. Defendents were convicted of importing pornography as it was a statutory offence. CJ held that the statutory offence breached Article 34 because it was a ban on imports, which is the most extreme form of QR. |
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Term
| A measure which constitutes a QR causes the most severe harm to the FMG in the EU. There is only one way in which a QR can be 'saved'. What is this? |
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Definition
| Through the application of 36, which allows for derogations from 34. |
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Term
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Definition
| Measures Having Equivalent Effect |
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Term
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Definition
| Measures Having Equivalent Effect to QRs - disguised restraints on imports (/exports) |
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Term
| There are two sources to consider in order to analyse how EU law defines MEQRs. What are they? |
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Definition
Directive 70/50 (inoperative, but still influential)
CASE LAW - Procureur du Roi v Benoit and Gustave Dassonville |
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Term
| How did Directive 70/50 go about defining MEQRs? |
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Definition
| It divided MEQRs in to two categories - distinctly applicable and indistinctly applicable. |
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Term
| According to Directive 70/50, what are distinctly applicable MEQRs? |
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Definition
| Measures that do not apply equally to domestic and imported goods... such measures discriminate against imports because they make importation more difficult and costly relative to the domestic product (e.g. demanding higher safety checks on imported goods) |
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Term
| According to Directive 70/50, what are indistinctly applicable MEQRs? |
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Definition
| Measures which appear on their face to be equally applicable to domestic and imported goods, but the effect of the measures disadvantages imported goods by requiring them to satisfy the state's domestic set of rules for similar products. These measures cover the marketing of products in the widest sense (e.g. butter packaging) |
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Term
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Definition
| discriminate against imports making their importation more costly relative to domestic products |
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Term
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Definition
| By requiring imports to meet the same rules for domestic products, puts the imported product at a disadvantage |
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Term
| Example of Distinctly applicable |
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Definition
| Higher safety checks for imported products |
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Term
| Example of indistinctly applicable |
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Definition
| Requiring imported butter to be re-packaged into identicle tubs to domestic butter |
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Term
| Walter Rau Lebensmitelwerke v de Smedt |
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Definition
EXAMPLE OF AN INDISTINCTLY APPLICABLE MEQR
FAILED UNDER 36 FOR PROPORTIONALITY
A belgian statute required all margarine in Belgium to be sold in cubic packages.
Although this law was addressed to all margarine producers irrespective of origin, it had the practical effect of stopping the sale of imports which were differently packaged and protecting domestic sellers.
The Belgian government defended the law on the basis of the avoidance of consumer confusion. The CJ accepted this as a potentially legitimate justification of an MEQR under Art 36, but found that it failed the requirement of proportionality |
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Term
| The case of Walter Rau Lebensmitelwerke, concerned what type of MEQR? |
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Definition
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Term
| How did the CJ define MEQRs in Dassonville? |
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Definition
| All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade |
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Term
| In order to be an MEQR under the Dassonville definition, is it necessary for the measure to ACTUALLY hinder trade? |
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Definition
| NO - it is enough that the measure is CAPABLE of hindering trade (see Buy Irish) |
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Term
| In Commission v Ireland (the Buy Irish case), was trade actually hindered? |
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Definition
| NO - as the campaign failed to produce the results they had hoped for... however, the campaign was still held to be an MEQR |
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Term
| In the Dassonville definition of MEQRs, trade is required to be either directly or indirectly hindered by the measure. What is this distinction equivalent to? |
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Definition
Distinctly applicable = DIRECTTLY HINDERS
Indistinctly applicable = INDIRECTLY HINDERS |
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Term
| Why is it important to distinguish between the two categories of Direct&Distinctly / Indirect&Indistinctly? |
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Definition
| Because, the defences availavle for each category differ. Distinctly applicable measures, as is the case with QRs can only be justified, if at all under Art 36. Indistinctly applicable measures are treated more leniently and may be justified under |Art 36, or by reference to mandatory requirements. |
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Term
| Name three types of measures which the CJ has found to be distinctly applicable MEQRs |
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Definition
1) Imposing additional requirements on imported goods - Firma Denkavit
2) National rules giving preference to domestic goods - Ireland cases
3)Restricting channels of distribution for imported goods - Dassonville |
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Term
| Firma Denkavit Fittermittel GmbH v Minister fur Ernahgrung |
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Definition
IMPOSING ADDITIONAL REQUIREMENTS ON IMPORTED GOODS = FOUND TO BE A DISTINCTLY APPLICABLE MEQR
A requirement that imported goods should be inspected was held to breach Article 34 because of the delays in the inspection process and the increased transport costs |
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Term
| What type of measure was the Buy Irish campaign found to be in the Commission v Ireland (the Buy Irish case)? |
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Definition
| A distinctly applicable MEQR, whereby national rules gave preference to domestic goods - even though it didn't actually hinder intra-community trade. |
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Term
| Commission v Ireland (the Irish Souvenirs case) |
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Definition
MEASURE FOUND TO BE A DISTINCTLY APPLICABLE MEQR BECAUSE OF NATIONAL RULES GIVING PREFERENCE TO DOMESTIC GOODS
Irish rules required imported fake-Irish souvenirs to bear an indication of the country in which they were made, and the word 'foreign'.
Ireland tried to defend it by saying that tourists wanted to buy genuine irish souvenirs
CJ rejected the defence, stating that buyers did not need to know where the particular item came from...NOTE, CJ highlighted that there was nothing in Art34 stopping Ireland from marking items saying 'Made in ireland'. |
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Term
| Will it ever be acceptable for a Member State to do a blanket promotion of all national goods? |
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Definition
| NO - such a promotion will be caught by Article 34. However, the Article allows for a Member State to promote a specific item which can be shown to have distinctive characteristics that may be national or regional in origin. |
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Term
| The case of Dassonville offers a good example of 'restricitng the channels of disribution for imported goods' being found to be a distinctly applicable MEQR... what happened in this case? |
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Definition
Belgian law required goods bearing a designation of origin (e.g. Scotch whisky) to carry a certificate of origin issued by the member state. However, Dassonville imported Scotch whisky in to Belgium from France, and so acquiring the certificate was an onerous task.
CJ held that the Belgian rule favoured direct importers from the UK over indirect importers, and therefore hampered free trade |
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Term
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Definition
THE MEQR DOES NOT HAVE TO BENEFIT THE COUNTRY WHICH HAS TAKEN THE MEASURE
Belgium introduced law which required goods bearing a designation of origin to be imported along with a certificate of origin issued by the relevant member state.
Held to hanper trade, as it discriminated against indirect importers of the goods, who were unable to obtain the certificate (e.g. french company trying to import Scotch whisky in to Belgium) |
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Term
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Definition
| Scotch whisky from france in to belgium + no certificate of origin |
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Term
| Most of the case law concerning indistinctly applicable MEQRs involves what? |
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Definition
| Measures regulating product characteristics such as packaging and presentation - these requirements will often result in additional burdens being placed on importers, and hence trade being restricted - regulations around characteristics creates an extra burden for importers, as the importer will then have to produce |
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Term
| In what case does the CJ provide a useful list of product requirements which may constitute MEQRs |
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Definition
| Criminal Proceedings against Keck and Mithouard |
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Term
| What type of MEQR did Walter Rau concern? |
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Definition
| An indistinctly applicable MEQR |
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Term
| Commission v Ireland (Re Dundalk Water Supply) |
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Definition
EXAMPLE OF AN INDISTINCTLY APPLICABLE MEQR
Contractors tendering for the contract to supply water to Dundalk were required by the Irish govt to supply pipes which complied with 'Irish Standard Mark 188'. This was indistinctly applicable, because all pipes, whether Irish or foreign met the necessary international standard which was the same.
Only one manufacturer made such pipes, and it was an Irish manufacturer.
One contractor submitted a bid made on the basis of supplying pipes to an international standard, but not to the irish standard - and this bid was rejected for that reason alone.
CJ held that the specification = indistinctly applicable MEQR, it constituted a barrier to imported pipes (If the 'advert' had said 'to the Irish standard, or equivalent', it would have been ok) |
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