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[FREE MOVEMENT OF GOODS II: ARTICLES 34-36 TFEU - NON-FISCAL BARRIERS]
MS are bound by A34 - but also MS will be held liable where they have failed to stop individuals from breaching rules - Commission v France - 'Spanish Strawberries' - French farmers sabotaged Spanish strawberries
Wide definition of A34 - public or quasi-public bodies - e.g. R v Royal Pharmaceutical Society of GB, Apple and Pear Development Council v Lewis, Commission v Ireland
A34: 'quantitative restrictions on imports and all measures having equivalent effect shall be prohibited' (QRs) and (MEQRs) QRs: defined in Geddo v Ente Nationale Risi - 'measures which amount to a total or partial restraint'Ban: as in R v Henn and Darby (UK ban on importation of porn) - most extreme form of QRImposed quotas: International Fruit Co (No 2) v Produktschap voor Groenten - licensing system
The only way a QR can be saved is through derogations in Article 36
MEQRS: e.g. national rules which regulate physical requirements for products Secondary legislation - D 70/50Transitional measure no longer in force - but indicates commission's understanding of MEQRs: divided MEQRs into 2 groups: distinctly applicable (do not apply equally to domestic/imported goods) and indistinctly applicable (appear to be equally applicable, but the effect disadvantages imported goods)Walter Rau Lebensmittelwerks v de Smedt PvbA - Belgian statute required all margarine to be sold in cubic packages - effect of protecting domestic producers: Belgian defence was avoidance of consumer confusion - seen as legitimate justification but failed proportionality requirement
CJ's definition in Dassonville 'All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, inta-Community trade': rule must be capable of hindering trade - very wide ambitCommission v Ireland ('Buy Irish') - didn't achieve expected results but still enoughConcepts of direct or indirect discrimination broadly equivalent to the concepts of distinctly/indistinctlyDistinction important because the defences differ - indistinctly applicable defendable with reference to 'mandatory requirements'
Case law on distinctly applicable MEQRs 1) Imposing additional requirements on imported goods: Firma Denkavit Futtermittel v Minister fur Ernahrung - requirement that imported goods should be inspected = breach because of the delays
+ transport costs 2) National rules giving preference to domestic goods: Buy Irish - campaign to promote Irish goods =
MEQR because imports likely to be effected - Commission v Ireland (Irish Souvenirs) - imported jewellery branded with the word 'foreign' - CJ held that buyers didn't need to know where it came from 1
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