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Free Movement Of Goods And Services Notes

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Free movement of goods and services

Article 34 TFEU: quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Directive 70/50In Article 2, a list of matters which can constitute an MEQR are specified:
a) minimum or maximum prices for imported products b) less favourable prices for imported products c) lowering the value of he imported product by reducing its intrinsic value or increasing its costs d) payment conditions for imported products which differ from those for domestic products e) conditions in respect of packaging, composition etc which only apply to imported goods or which are more difficult to satisfy than domestic goods f) the giving a preference for purchasing of domestic goods as opposed to imports g) limiting publicity in respect of imported goods h) prescribing more difficult stocking requirements than is the case for domestic goods

These are types of MEQRs:

Dassonville
Belgian law provided that goods bearing a designation of origin could only be imported if they were accompanied by a certificate from the government of the exporting country certifying their right to such a designation. Dassonville imported Scottish whisky into
Belgium from France without being in possession of the certificate from the British authorities. The certificate would have been very difficult to obtain for goods which were already in free circulation in a third country.
The ECJ held that all measures which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered MEQRs. So we're concerned with effect.
However, a Member State may take measures which are reasonable, and these will not be caught by Article 34.
It was held that requiring certificate of authenticity which is less easily obtainable by importers of an authentic product which has been put into free circulation in a regular manner in another member state than by importers of the same product coming directly from the country of origin constitutes an MEQR. Commission v Ireland
Significance: Where a State engages in a campaign- in this case to 'buy Irish' to promote the purchase of domestic as opposed to imported goods.
This is an example of the State promoting or favouring domestic products to the detriment of competing exports.

Commission v United Kingdom
UK legislation required certain goods should not be sold in retail markets unless they were marked with their country of origin, which applied equally to imported and national goods.
It was held that such a requirement makes marketing in other Member States more difficult,
and slows down economic interpenetration.
Such Member State legislation will normally only be acceptable if the origin implies a certain quality, or they were made from certain materials or by a particular form of manufacturing,
or where the origin is indicative of a special place in the folklore or tradition of the region in question.

Cassis de Dijon
The applicant intended to import the liquer Cassis de Dijon into Germany from France. The
German authorities refused to allow the importation because the French drink was not of sufficient alcoholic strength to be marketed in Germany. Under German law such liqueurs have to have an alcohol content of 25%, whereas the French drink had an alcohol content of 15 to 20%.
Held, that obstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognised as being necessary in order to satisfy mandatory health requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.
The minimum alcohol requirements do not serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods,
which constitutes one of the fundamental rules of the Community.
Craig: the Cassis judgement encapsulated therefore a principle of mutual recognition: when one good has been lawfully produced and marketed in one Member State, it should not be introduced into any other Member State. Establishment
Article 49 TFEU
…restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall apply also to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any
Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as selfemployed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second para of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions in the chapter relating to capital.
Craig: para 1 requires the abolition of restrictions on freedom of primary and secondary establishment, while para 2 provides for a right to pursue self-employed activities on an equal footing with the nationals of the Member State of establishment.

Gebhard
A German national pursued activity as a lawyer in Italy on a permanent basis. The Milan Bar
Council brought proceedings

the basis that he had not been admitted as a member of the
Italian Bar, and had not had his training and qualifications recognised by Italy.
The ECJ held that measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions:
1)
2)
3)
4)

they must be applied in a non-discriminatory manner they must be justified by imperative requirements in the general interest they must be suitable for securing the attainment of the objective they pursue they must not go beyond what is necessary to attain it

Craig: does not require discrimination, direct or indirect- some rules are genuinely equally applicable in law and in fact. The essence of Gebhard is an 'obstacle' approach.

Services
Article 56 TFEU
...restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.

Article 57 TFEU Services shall be considered services where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to free movement of goods,
capital and persons. Services shall include:
a)
b)
c)
d)

activities of an industrial character activities of a commercial character activities of craftsmen activities of the professions

Van Binsbergen
A dutch national acting as legal adviser to Van Binsbergen in respect of proceedings before a
Dutch security court transferred his place of residence from Netherlands to Belgium during the course of the proceedings. He was told he could no longer represent his client as a result of this.
Held, that as regards the specific requirement of nationality or residence, Articles 56 and 60 impose a well-defined obligation, to abolish state restrictions on the freedom to provide services which were imposed on non-resident providers.
Keck and Mithouard
Keck and Mithouard were prosecuted in France for selling goods at a price which was lower than their actual purchase price (resale at a loss), contrary to French law. The law did not ban such sales by the manufacturer. K&M claimed that the French law was contrary to
Community law concerning free movement of goods.
The Court here admits it got the Sunday trading case law wrong. The application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, provided these provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
Such an application of rules to products from other Member States si not such as to prevent their access to the market or impede their access any more than it impedes the access of domestic products.
So rules relating the goods themselves were within Article 34 because they would have to be satisfied by the importer in addition to any such provisions existing within its own state.
Such rules by their nature were likely to impede access to trade.
Rules concerning selling-arrangements imposed an equal burden on all those seeking to market goods in a particular territory. They did not impose an extra cost on importers, their purpose was not to regulate trade, and they did not prevent access to the market. However, it was not intended to set aside Cassis: two qualifications to the ruling in Keck:
1) It is open to the ECJ to determine that rules which affect selling as part of the product itself: so in Familiapress: the prohibition on prize competitions in newspapers is a method of sales promotion, but also bears on the actual content of the products, in so far as the competitions in question form an integral part of the magazine in which they appear. So the national legislation prohibiting such practices was not concerned with selling-arrangements under the Keck ruling.
2) Differential impact in law or fact: even if a national regulation is characterised as being about selling, it will be brought within Article 34 if it has a differential impact,
in law or fact, for domestic traders or importers. The case below indicates the application of this:
Konsumentombudsammen v Gourmet International Products
The Swedish consumer ombudsman sought an injunction restraining GIP from placing advertisements for alcohol in magazines. Swedish law prohibited advertising of alcohol on radio and television, and prohibited advertising of spirits, wines and strong beers in periodicals other than those distributed at the point of sale. The prohibition on advertising did not apply to periodicals aimed at traders such as restaurant owners. GIP published a magazine containing advertisements for alcohol. Ninety percent of subscribers were traders,
and 10% were private individuals. GIP argued that the advertising ban was contrary to
Article 30. It contended that the advertising ban had a greater effect on imported goods than it did on those produced in Sweden.
Held, if national provisions are to avoid being caught by Art 34, they must not be of a kind to prevent access to the market by products from another state or to impede access to the market by products from another state any more than they impede the access of domestic products.
In the present case, alcoholic beverages which come from outside the Member State cannot rely on the social publicity which domestic products get, and therefore may have more of a need to advertise than do domestic brands. As such, the prohibition affects them in a more onerous way.

Douwe Egberts
National legislation prohibits advertising with references to slimming and to medical recommendations, attestations, declarations or statements of approval in the labelling,
presentation and advertising of foodstuffs. There was a Directive dealing with rules in this area.
In order for national provisions restricting or prohibiting certain selling arrangements not to be caught by Article 44 TFEU, they must not be such as to impede access to the market by products from another Member State or to impede access any more than it impedes access by domestic products.

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