Free Movement Of Goods And Services Notes

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 70/50

• In Article 2, a list of matters which can constitute an MEQR are specified:

1. minimum or maximum prices for imported products

2. less favourable prices for imported products

3. lowering the value of he imported product by reducing its intrinsic value or increasing its costs

4. payment conditions for imported products which differ from those for domestic products

5. conditions in respect of packaging, composition etc which only apply to imported goods or which are more difficult to satisfy than domestic goods

6. the giving a preference for purchasing of domestic goods as opposed to imports

7. limiting publicity in respect of imported goods

8. 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 self-employed 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 o 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. they must be applied in a non-discriminatory manner

2. they must be justified by imperative requirements in the general interest

3. they must be suitable for securing the attainment of the objective they pursue

4. they must not go beyond what is necessary to attain it

Craig: does not...

Buy the full version of these notes or essay plans and more in our European Human Rights Law Notes.