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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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Homewood: EU Law Concentrate 4e
'The free movement of goods is an essential element of the internal market and both EU legislation and the decisions of the Court of Justice support the achievement of this aspect of economic integration. However, the EU internal market is imperfect, so far as goods are concerned. There remain impediments to free movement which are not only embedded in the legislation but also arise from the case law of the Court of Justice.'
In the light of this statement, critically discuss the extent to which EU legislation and the case law of the Court of Justice ensure the free movement of goods in the internal market.
- The internal market, four freedoms, Article 26 TFEU.
- Free movement of goods is a fundamental EU principle and key to economic integration.
Ensuring the free movement of goods – EU legislation and the case law of the Court of Justice
- Article 30: tariff barriers – customs duties/CEE.
- Article 34/35 non-tariff barriers – quantitative restrictions/MEQRs.
- Article 110 discriminatory taxation.
- The Court of Justice interprets the provisions broadly, in support of economic integration.
- Positive integration: the harmonization programme; principle of mutual recognition.
Article 30: prohibition of tariff barriers to trade
- Customs duties (define, Diamonds) – easily identified so unlikely to occur.
- Scope of tariff barriers drawn widely by inclusion of CEEs (define, Diamonds).
- Charges must satisfy benefit to importer (Statistical Levy) and proportionality (Customs Warehouses) – narrowly drawn conditions – to fall outside Article 30
- No derogation in relation to Article 30.
- Protectionist intent is irrelevant in relation to Article 30 – freedom of cross-border trade is paramount (Diamonds).
Article 34: prohibition of non-tariff barriers to trade
- Scope of non-tariff barriers is wide, comprising quantitative restrictions and all measures having equivalent effect (Article 34 on imports).
- Quantitative restrictions include both import/export quotas and bans (Geddo).
- Court of Justice – wide definition of MEQRs – Dassonville 'all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade' – also Directive 70/50 covering both distinctly (eg San Jose Scale, Dassonville) and indistinctly applicable measures (eg Cassis, Walter Rau).
- Note, however, the proviso on 'reasonable' restraints that is pursued later in Cassis de Dijon.
- However, the Court of Justice has placed limits on the scope of 'MEQR'. Keck provides that 'selling arrangements' having no greater impact on imports than on domestic products fall outside Article 34. Note subsequent cases on 'selling arrangements': Tankstation 't Heukske (shop opening hours), CommissionvGreece (restrictions on the kinds of retail outlets from which certain goods can be sold), De Agostini (product advertising).
Article 110: prohibition of discriminatory internal taxation
- The recognition that restrictions can arise from charges/levies/taxes that are imposed other than by virtue of importation. Prohibition of discriminatory internal taxation (Article 110) – systems of internal dues – (Denkavit definition).
- Court of Justice held that Article 110 covers both direct discrimination (Lütticke) and indirect discrimination (Humblot).
- Paragraphs 1 and 2 together have wide scope – equal taxation for 'similar' products (paragraph 1) – no advantage to domestic products where similarity cannot be established but nevertheless products are in competition (paragraph 2).
Harmonization: positive integration
- Harmonization: elimination of disparities between national product standards hindering interstate trade – sets binding EU-wide standards.
- Harmonizing measures preclude further restrictions by Member States in the relevant area.
Exceptions/impediments to free movement of goods
Article 36 derogation and Cassis
This part of the answer requires a full analysis of the Article 36 derogation and the Cassis principles. You should draw out the similarities and differences and underline the heavy burden on states seeking to derogate. Like all exceptions from the from the free movement rules, the provisions are interpreted restrictively by the Court of Justice. The following points should be included:
- Exceptions apply only where there are no EU harmonizing measures covering the interest concerned.
- Exceptions apply to Article 34 only – no justifications for breaches of Article 30, though possible to exclude charges from scope of Article 30.
- Court of Justice has accepted objective justification of indirect taxation, but this is outside scope of Article 36, Cassis and considered below.
- Both distinctly and indistinctly applicable measures may be justified – note the scope of Article 36 and Cassis, respectively, here.
- The Court of Justice requires evidence of the risk/threat (eg San Jose Scale).
- Article 36 grounds (set them out) are apparently wide but have been interpreted restrictively – the list is exhaustive (Irish Souvenirs).
- Article 36 – proportionality requirement often an insurmountable hurdle for Member States (eg Beer Purity).
- Article 36 – a further requirement – there must be no arbitrary discrimination/disguised restriction on trade – catches protectionist motives (Turkeys).
- Cassis – mutual recognition is the underlying assumption supporting the free movement of goods – like harmonization, it provides for positive integration – the assumption is set aside only by proportionate justifications.
- Cassis – rule of reason – mandatory requirements wider than Article 36 grounds in that the list has been extended by the Court of Justice: includes environmental protection (Danish Bottles), legitimate interests of economic and social policy (Oebel) and national and regional sociocultural characteristics (Torfaen Borough Council).
- Cassis: indistinctly applicable measures only; they must be proportionate.
Objective justification of discriminatory taxation
- ECJ has accepted the principle of objective justification for indirectly discriminatory taxation (eg Chemial Farmaceutici) but no systematic formulation of policy, by contrast to the Article 36 exceptions.
Free movement of goods is secured both by deregulation and positive integration. The scope of unlawful restriction is drawn widely by the Court of Justice, in support of economic integration, though in Keck the Court laid down limits to Article 34. Whilst certain kinds of restriction are permissible, the Court interprets these narrowly and they must always be proportionate to their objective.