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EU Supervision 7 Essay
(i) As regards the inspection requirement, Burmanjer explained that the necessity of authorisation is categorized as a certain selling arrangement (CSA) as coined in Keck para. 16. Absent any precise defnition, the meaning of CSA has crystallized through the case law. Thus, the need to the "inspected by the GBA" would likely be classifed as a CSA. A CSA will fall outside the scope of Art 34 TFEU if it 'applies to all affected traders operating within the national territory and provided that it affects in the same manner, in law and in fact, the marketing of domestic products and those from other Member States' (Keck para. 16). As regards
the frst condition, the inspection
requirement applies to all traders regardless of origin, and is thus satisfed. As regards the second condition, while there may be a remote possibility that foreign traders would in fact be at a disadvantage owning to unfamiliarity with the GBA, possible language barriers, or transportation logistics,
the Court indicated in Burmanjer that such marginal effects would probably be 'too
insignifcant and uncertain' to be regarded as being such as to hinder or otherwise interfere with trade between Member States." (para. 31) Thus it is submitted that the rule falls outwith art 34. As regards the packaging requirement, the Court specifcally indicated in Keck that such a requirement would be considered a "product requirement" and fall under the category of a 'measure having equivalent effect' to a quantitative restriction. As such, it falls within the ambit of Art. 34 unless justifed by a 'mandatory requirement' or by an Art. 36 derogation, both of which must satisfy a proportionality test. Article 36 provides a fnite list of derogations from the principle of free movement of goods. Under this Article, the German government would be advised to make three submissions. First, that the requirement to package all materials in recyclable material serves the protection of animal and plant health as non recyclable plastic bags damage the natural habitat of all wild animas and plants. Secondly, although FFAD suggest that Art 36 does not include environmental protection, AherWaggon and particular PressenElektra suggest that environmental protection is included, the latter case pointing particularly to the merit of recycling in reducing the emission of greenhouse gases, which Germany is also concerned about. Art 36 aside, in Cassis de Dijons, the court provided an open ended list of 'mandatory requirements' to supplement the Treaty. The German government is thus advised to also submit that the rule would be licensed under the protection of environment mandatory
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