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Free Movement Of Goods And Services Problem Question Template Notes

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General PQ Template
Notes:

If national authorities have acted, EU courts cannot help with that - CJEU can either hear (1)
action for annulment of EU law; (2) preliminary reference (validity or interpretation)
National remedies: specific remedies in certain fields; Francovich

1. Which court?
a. NB: Not impermissible to go to both, but extra fees w/o being faster b. General Court - AFA under Art.263 TFEU
i. GC cannot issue mandatory interim relief against national authorities
(bc not party to proceedings)
c. National court - PRP under Art.267(b) (validity or interpretation of EU acts)
i. Even if EU legislation is not unlawful, national authorities may have breached EU law (GC cannot hear this, but Commission could use
Art.258)
ii. Disadvantage: must persuade national court to refer (parties have no right to a reference - see AG Jacobs in UPA); on pain of national and
Francovich/Kobler sanctions, though, national courts must refer Qs on validity (Foto-Frost)

1. MUST refer (i) where it considers an EU measure may be invalid, or (ii) courts against whose decision there is no judicial remedy in national law (Art.267(3))

2. MAY refer when court thinks a PRP is necessary to enable it to give judgment, (even if there is a judicial remedy against their decision (Art.267(2))
iii. Other rules

2. Challenge to EU act - Art.267(b) - assessment by CJEU via PRP
a. Standing rules under Art.263(4) not applicable b. Any discernible procedural irregularities OTF?
c. If imposes burdens on X, needs valid legal basis in the Directive.
d. Essentially the same grounds of review for validity as Art.263(2) - see below e. Legal basis? Note WHICH EU institution has acted - do they have competence in the provision? Only needs to satisfy one, e.g.
i. Art.114(1) - internal market competence (see Tobacco Advertising II)

1. [see Art.114 analysis]
ii. Art.153 - worker health, safety, working conditions, social protection iii. Art.168(2) - cooperation of MS action in human health protection iv. Art.168(4) - public health (a) blood/organs; (b) veterinary /
phytosanitary; (c) medicinal products v. Art.192(1) - environmental competence f. Substance?
i. Free movement of… (TFEU) 1. Art.21 - citizenship (not FM)

2. Art.34 - goods [see PQ template below]

3. Art.45 - workers

4. Art.49 - self-employed

5. Art.56 - services ii. Fundamental rights (= condition of lawfulness of EU acts, Kadi II)

1. [CFR rights]

2. Art.52(1) CFR - Derogations must be: provided for by law,
respect the essence of the right, proportionate (recognised legitimate aim, appropriate, necessary)

3. Challenge to EU act - Art.263 TFEU - assessment by General Court via AFA
a. Standing - Art.263(4) - three ways to get standing post-Lisbon:

1. Act addressed to applicant

2. Act of direct and individual concern

3. Regulatory act + direct concern + no implementing measure ii. Post-Codorniu any legally-binding act which is of 'individual and direct concern' to the applicant

1. Individual concern? Plaumann - 3 main paradigms/interpretations (Enchelmaier):
a. Procedural rights - under the legal basis, any right to participate in the adoption of the EU act? If not, no standing.
b. Identification in the act - being specifically named in
Decision may confer standing (Roquette)
c. Rights/duties affected by act - EU institution was/ought to have been aware of applicant when adopting act  in this sense, 'addressed' to C

2. Direct concern? - Q of causality (Microban)
a. Did the EU act affect the legal position of the individual?
b. The EU act will not have 'caused' the impact on C if the loss/damage was actually caused by a subsequent exercise of discretion (which can instead be challenged)

3. Regulatory act?
a. Generally applicable - Art.290(1) TFEU states a legislative act may delegate to Commission the power to adopt 'non-legislative acts of general application'
(Inuit, Microban)

4. IF no 'individual and direct concern'  applicant can instead challenge the implementing measure:
a. if implemented by an EU institution, by AFA + plea of illegality b. if implemented by MS, by the PRP iii. NOTE - role of Aarhus Convention if an env law claim b. Grounds of review (Art.263(2) TFEU - in practice PRP uses these grounds too)
i. Lack of competence ii. Infringement of an essential procedural requirement iii. Misuse of powers iv. Infringement of Treaties or any rule relating to their application
(including breach of GPs  see comment)
c. Void - Art.264 - CJEU shall declare the impugned act to be void if the challenge is well-founded

4. Challenge to EU act - Art.340 TFEU - EU liability for dmg caused by EU acts a. Same as the conditions for Francovich liability under Factortame (No. 3) - see below

5. Challenge to MS act a. Direct effect incl. of FM provisions (Van Gend en Loos); VDE of Directives after transposition deadline (Van Duyn, Ratti)
i. Did national authority comply with the EU legislation?
ii. CFR right = HDE if it has an equivalent GP that has already been recognised as horizontally applicable (Kucukdeveci)

1. Only if the Charter right is self-sufficient (Bauer and Broβonn)
b. 'Reinterpretation' (Marleasing, van Duyn - see Pfeiffer) or exclusion (see CIA
Security, Unilever, Wells - only applies to 'procedural' directives)
c. Francovich - state liability for breach of EU law?
i. Three requirements (Factortame (No. 3)):

1. Law infringed must be intended to confer rights on individuals

2. Breach is 'sufficiently serious' = MS "manifestly and gravely disregarded the limits on its discretion" [= highest hurdle]

3. 'direct causal link' between breach and dmg

4. Free movement of goods and services - PQ template

1. 2.

3. 4.

5. Is the area of law harmonised? If so, then the issue is governed by the Directive (Moormann)
a. In practice, it may be part-harmonised (e.g. Walloon Waste - non-hazardous vs hazardous,
only one was harmonised)
Is it goods?
a. Defined broadly (in Walloon Waste, 'waste' is a good)
Who is imposing restrictions?
a. Anyone acting on behalf of the state is bound by Art.34 b. If the state allows a person to do something, it may be the State's responsibility
(Schmidberger)
c. The state may fail to stop someone from imposing restrictions (Commission v France)
Breach of Art.34?
a. Two categories:
i. Quantitative restrictions on imports (i.e. bans and quotas)
ii. MEQRs - four key cases:

1. Dassonville - "All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intraCommunity trade are to be considered as MEQRs.", [5]

2. Cassis de Dijon - catches indistinctly applicable measures  catches many national measures, simply bc the difference between national rules means foreign producers have to alter their goods a. Expanded scope of Art.34 really pissed off MSs, e.g. the Sunday
Trading cases; if shops are open for less time, they can sell less goods (don't even have to prove that, bc it's only actually or potentially); this meant it breached Art.34.
b. So we see…

3. Keck - Court says the previous case law was wrong: Art.34 does not apply to selling arrangements which do not hinder market access a. This is therefore a filter on the broad scope of Cassis b. AG says this is really about market access c. GIP - confirms it is the 'market access' test

4. Aklagaren - restrictions on use of products can hinder market access; must be significant b. If no breach, EU law says nothing about it
Is it justified?
a. If justified, it remains a breach, but a justified breach.
b. Question 1: Is it distinctly or indistinctly applicable rules?
i. Do not look at the effects - just look at the rule - is it distinguishing between imported and domestic goods, on its face. Just what the rule says.
ii. IF DISTINCTLY APPLICABLE

1. Can only justify using Art.36 (exhaustive list interpreted narrowly)
(confirmed in Commission v Ireland (1981)).
iii. IF INDISTINCTLY APPLICABLE

1. Can ALSO be justified using mandatory requirements (Cassis)
iv. Matters bc if indistinctly applicable, can use 'mandatory requirements'.

1. Includes things important to EU law, including:
a. environmental protection (Walloon Waste)
b. FRs (Schmidberger and Familiapress)
c. Question 2: Is the measure NAP?
i. Necessary, appropriate, proportionate (Gebhard) Stage 2 - personal scope

Buy Irish and Apple and Pear Council - involved a clear assumption that a genuinely private body is not bound by Art.34

COMPARE: Arts. 45 and 49 TFEU on FM of persons long been interpreted to impose obligations on private parties acting collectively (Bosman, Viking Line)
and even to the activities of a single person (Roman Angonese)  reasons apply equally to FM of goods, but CJEU has consistently refused to extend to
FM of goods (Schmidberger, Sapod Audic - bc "enacted by MSs")
o BUT…
Standards set up by pvt bodies that are de jure or de facto obligatory = bound by
Art.34 (Commission's answer to Written Question No 862/83)
o E.g. non-profit private body's power to certify products "in reality holds the power to regulate the entry into the German market of products" (Fra.bo sPA)

Stage 4 - breach of Art.34? - establishment of jurisdiction

Dassonville (1974) - MEQRs: "All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade"
o Focus on effect - very broad, oriented towards market integration

Weatherill: judicial law-making bc little explicit basis in treaty, different to DE
and supremacy bc judicial activism re: the substantive law
Cassis de Dijon (1979) - indistinctly applicable rules  obstacles arising simply bc national laws are different  can be justified by mandatory requirements

Applied to services in Van Binsbergen
Keck (1993) - Art.34 does not catch "national provisions restricting or prohibiting certain selling arrangements" provided they apply to all traders operating in the MS,
and "affect in the same manner, in law and in fact," domestic and imported products.
o Criticised bc even if truly equal effects on all market actors, no restriction on market access but merely creates a universal cost on consumers without competitive consequences

Maduro's constitutional interpretation of Keck - domestic actors are represented in the law-making process whereas foreigners are not (so states impose costs on foreign actors without taking them into account)
Moped Trailers (2009) - market access test - Italian prohibition on mopeds towing trailers meant v limited use for specific trailers  "practically no interest in buying such a trailer"  the national rule "prevents a demand from existing in the market
… and therefore hinders their importation"  MEQR 

o Justification: public safety - note possibility of less intrusive measures does not necessarily mean unjustified ("general and simple rules which will be easily understood and applied" may be justified even if less restrictive poss.)
o Aklagaren (Swedish Jet Skis) (2009) - ban of using jet skis on certain waterways meant "merely marginal" actual possibilities to use jet skis in
Sweden - "considerable influence on the behaviour of consumers"
Other important cases:
o Edah, Douwe Egberts - Art.34 does not prohibit provisions favouring imports!!!
o Viking Line - collective action can constitute a restriction on FM
ANALYSIS: Keck introduced a 'legal categorisation approach' (categories: product requirements, selling arrangements, restrictions on use) but NOW court uses a
'market access' approach  two types (Lianos (2015)):
o Broad - 'obstacles to trade' approach (additional regulatory burdens on imported goods = obstacles to trade and impede market access -
Dassonville/Cassis/Moped Trailers)  THIS IS THE ONE TO USE
o Narrow - 'discriminatory market access' approach (focuses on differential effect of measure on imported vs domestic products - Keck)
o Recent cases:
 Commission v Poland (2013) and Commission v Lithuania (2014) -
national rules requiring right-hand cars to be modified into left-hand cars for safety reasons
 AG Jaaskinen - did not categorise case into on of the categories (product requirements, selling arrangements,
restrictions on use)  instead used the disparate impact on market access approach (narrow)
 CJEU - no reference to disparate impact on imported vs domestic products and no attention paid to behaviour of consumers  back to Dassonville/Cassis/Moped Trailers focusing on whether there exists a likely and abstractlydefined obstacle to trade  broad view of market access approach
 Commission v Spain (2014) - reinforced trend towards the broad view and focus on consumer demand  rejected the narrow 'disparate market access' approach  Lianos (2015): "The last vestiges of Keck
… have thus been practically wiped away from Art 34 jurisprudence."
 BUT two major contributions of Keck highlighted by CJEU:
o (1) disposed of factual assumption that selling arrangements do not constitute an obstacle to trade

(2) altered the 'market access' approach

Davies (2010): the dichotomy between 'discrimination' and 'market access' is largely false bc discriminatory measures tend to impede market access

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