A more recent version of these Free Movement Of Goods Ii notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL EU Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
[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national rules which regulate physical requirements for products Secondary legislation - D 70/50Transitional measure no longer in force - but indicates commission's understanding of MEQRs: divided MEQRs into 2 groups: distinctly applicable (do not apply equally to domestic/imported goods) and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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