EU-Caselist FMG.txt

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EU-Caselist FMG.txt
2010-05-06 03:18:14
EU Caselist FMG txt

EU-Caselist FMG.txt
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  1. Geddo v Ente Nazionale Risi-[1973]
    �quantitative restriction� defined broadly=measures which amount to a total or partial restraint on imports, exports or goods in transit. Ex-complete bans on goods, or quotas by amount or by value, which restrict the rt to import/export a particular product.
  2. Dassonville [1974] (8/74)
    MEQR-Belgian law provided that imported goods must have a certificate of origin, attached to them in the originating country. Dassonville had imported a consignment of Scotch whisky into Belgium from France without the requisite certificate from the UK authorities. When Dassonville was prosecuted in Belgium he argued that the Belgian law was a MEQR. The ECJ agreed with him and said: ��the requirement by a Member State of a certificate of authority, which is less easily obtainable by importers of an authentic product, 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 a measure having equivalent effect�.
  3. Dassonville formula
    MEQR-extremely broad definition of a-�All trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions,� unless justified=an effects doctrine-crucial element is the possible effect on trade; there is no need to show an intent to discriminate ie This definition focuses on �hindrance� rather than discrimination.The ECJ then added that in the absence of a Community system guaranteeing the authenticity of a products origin, an individual MS may take measures to prevent unfair practices in this connection provided that the measures were reasonable. This is subject to the further qualification that even if the measures are subject to Art 30 they must not constitute a means of arbitrary discrimination or a disguised restriction on trade between MS. Thus some reasonable restraints may be permissible.
  4. Commission v UK [1985] (207/83)-
    • MEQR-confirmed and applied Dassonville formula- UK legislation that required certain goods to be marked with their country of origin. The UK argued that this rule applied to both domestic and imported goods, and that this information was important to consumers who used the information as an indication of quality.
    • Held: that the legislation was in breach of Article28 as a MEQR. The Court went further and said that indications of origin enable consumers to assert any prejudices they may have against foreign products thereby slowing down interpenetration of the Community.
  5. Commission v Germany (Re Beer Purity law) [1987] (178/84)
    mandatory requirements. In Germany there was a law that stated that the term �bier� could only be attached to drinks made from barley, hops, yeast and water. A further law prohibited the importation of beer containing additives, unless the additives were approved. The German government defended its rule by arguing that it was necessary to regulate the term �bier� for the sake of consumer protection. German beer drinkers were used to their drinks being made of only the four ingredients. They also argued that the legislation was not protectionist in that any brewer who made beer solely with the four ingredients was free to market it in Germany. The ECJ was not impressed with these arguments that they posed an increased danger to German consumers because so much beer was consumed in Germany! Additives were tested by FAO and did not pose danger to public health & met real need. It said that consumers would be equally protected by labelling the products with a list of ingredients. That way German beer drinkers would be able to make informed choices. The greater the uncertainty, in science and in practice, the greater the Member State�s discretion in applying the precautionary principle.
  6. Cassis de Dijon [1979](120/78)
    -indistinct applicable measures (dual burden� rules),Under German law there was a req for a minimum alcoholic content of 23% for Cassis-was satisfied by cassis produced in Germany, however, an importer wished to bring in cassis form France. French cassis had traditionally an alcoholic content between 15 and 20 % and thus the importer could not lawfully market Cassis de Dijon in Germany. The measure was indistinctly applicable, i.e. it applied equally to German and French liqueurs, but its effect was to exclude French cassis from the German market. it was up to the German authorities to demonstrate that their national rules governing the alcoholic strength of various liqueurs were justified. Importer argued that the German law was a MEQR. The ECJ rejected the German arguments relating to public health (that a high alcohol level would prevent increased consumption), the fairness of commercial transactions (that weak imported cassis would have an unfair commercial advantage over the more expensive German cassis), and protection of the consumer. The ECJ applied the Dassonville formula &held that the German law was in breach of Art 28, as it had a restrictive effect on trade.
  7. Cassis-de-Dijon principle
    • which states that a product legally manufactured in one EU state may circulate freely in another.NON-EXHAUSTIVE
    • Held: 1- it introduced the possibility of justification for indistinctly applicable measures (only) under the �mandatory requirements�, as long as the national measures are proportionate (suitable to achieve their aim and lest restrictive means) ie any measure taken to protect a �mandatory requirement� must be proportionate to that end and must be the least restrictive of trade.
    • 2- �mutual recognition intro- ie idea that every MS must respect the traditions of other Member States, and that once a product has been lawfully produced and marketed in one Member State it will meet the mandatory requirements of the other Member State, unless objective evidence can show otherwise.
    • 3-Important-assists the integration of the market through the application of Art 28 by the courts ie, expressly extended the reach of Article 28 EC to catch indistinctly applicable rules
  8. Walter Rau [1982] ECR 3961 (Belgian margarine)
    • akaWalter Rau Lebensmittelwerke v De Smedt (261/81),mandatory requirements-Belgian law prohibited the marketing of margarine in any container that was not cube shaped.The Belgian government argued that the rule was equally applicable to both domestic and foreign products of margarine, and that the measure was necessary for the protection of the consumer, who needed to be able to tell the difference between butter and margarine. The ECJ was not convinced. Although the measure was equally applicable to domestic and foreign producers, Belgian producers would already be complying with the rule. A competitor wishing to break into the Belgian market would have to have two production runs, one with their existing box shape, and another with the new cube shaped box for the Belgian market. This would increase their costs and make competition more difficult therefore (repackaging would make the sale uneconomic). The Court held that the rule could not be imposed on imported margarine because it was disproportionate � clear labelling would be enough to prevent confusion with butter.
    • Held: the action taken against an import must be in proportion to the risk presented by the import, and the restriction must be the least necessary to achieve the purpose desired by the restriction.
  9. Commission v Germany (Animal Inspection Fees)[1988] (18/87)
    • inspection fees imposed by the Directive 81/389 were held to be acceptable because the conditions set out by the Court were satisfied. That is:
    • a) fees did not exceed the actual cots of the inspections in connection with which they were charged.
    • b) inspections were obligatory and uniform for all the products concerned in the Community.
    • c) The inspections were provided for by Community law in the general interest of the Community.
    • d) The inspections promote the free movement of goods, in particular by neutralizing obstacles that could arise from unilateral measures of inspection adopted under Article 36 of the Treaty.
  10. Campus Oil [1984 (72/83)
    -narrow scope of Art 30 justifications-Importers of oil products into Ireland were obliged to buy 35% of their requirements from the state oil refinery. Campus Oil argued that, as they could not import 100 per cent of their needs, this was a breach of Article 28 EC. The ECJ said that the maintenance of regular oil supplies, which were fundamental to the existence of the state, was a legitimate aspect of public security. However, the Court questioned whether the compulsory purchasing requirement, at a price above the world market price, was necessary to ensure the survival of the state oil refinery. If it reduced its prices to the world market price, would it not still get enough customers to survive? These issues of fact were left to the national court (it was a preliminary reference). The judgment shows clearly the Court�s approach to the Article 30 EC derogations: it is not enough for the Member State to invoke a legitimate objective covered by Article 30 EC. It has also to show that the measure in question is necessary for that purpose, and that it is proportionate. That means asking whether there is any other way of achieving the objective (in this case viability of the Irish state oil refinery) which would be less of a restriction on the free movement of goods. �The purpose of Article 30� is not to reserve certain matters to the exclusive jurisdiction of Member States; it merely allows national legislation to derogate from the principles of free movement of goods to the extent that this is&remains justified in order to achieve the objectives set out in the Art30�. EXHAUSTIVE!
  11. Exportur SA v LOR SA et Confiserie du Tech
    held that rules protecting indications of provenance and designations of origin laid down by a bilateral convention between member states were permissible under community law provided that the protected designations had not acquired a generic connotation in their country of origin. A regulation has now been enacted regulation 1107/96 1996 OJ L 148/1, as amended) under the procedures set down in article 17, regulation 2081/92 1992 OJ L 208/01) providing for the protection of designations of origin and geographic indications for in excess of 300 name products, such as Stilton cheese and Hereford beef. This regulation protects registered designations of origin against all use including evocations, ie designation so evocative of the protected designations that, when the consumer is confronted with the product, the image that is triggered in the consumer's mind is that of the product the designation of which is protected.
  12. Commission v Belgium and Luxemburg (Gingerbread) (2 & 3/62) it held that:
    • � a duty, whatever it is called, and whatever its mode of application, may be considered, a CEE to a customs duty, provided that it meets the following criteria:
    • a) It must be imposed unilaterally at the time of importation, or subsequently;
    • b) It must be imposed specifically upon a product imported from a member State to the exclusion of a similar national product; and
    • c) It must result in an alteration of price and thus have the same effect as a customs duty on the free movement of products�.
  13. Commission v Italy (Re Statistical Levy) [1969]
    • definition CEE-the Italian Government had levied a charge on goods which they said would be used for compiling statistical data on trade patterns and thus the levy on goods was a charge for services rendered and should not be regarded as a CEE. The ECJ did not agree and said that as the statistics produced would be of general benefit, and any advantage gained by individual importers so difficult to assess, that the extra charge could only be viewed as a CEE. �Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier...constitutes a charge having equivalent effect��
    • Despite the strict interpretation given by the ECJ a charge may, in certain exceptional circumstances, be acceptable, and therefore outside the scope of Article 25. To be permissible the charge must be within the scope of Article 90. In general, to be permitted a charge must be for one of three reasons. It must be for the benefit of the importer; it must be required by Community law; or it must be part of the system of internal taxation.
    • Bresciani (87/75)-Italy imposed a charge for the compulsory veterinary and public health inspections which had to be carried out on imported cowhide. The ECJ held that Articles 23 & 24 [ex 9-16] prohibit any charge �which is intrinsically imposed on goods�by reason of the fact that the cross a frontier�. They also said that the maintenance of public health inspection system imposed in the general interest could not be regarded as a service rendered to an importer such as to justify the imposition of a pecuniary charge.
  14. Bresciani (87/75)
    held that Articles 23 & 24 [ex 9-16] prohibit any charge �which is intrinsically imposed on goods�by reason of the fact that the cross a frontier�. They also said that the maintenance of public health inspection system imposed in the general interest could not be regarded as a service rendered to an importer such as to justify the imposition of a pecuniary charge. Italy imposed a charge for the compulsory veterinary and public health inspections which had to be carried out on imported cowhide.
  15. Keck and Mithouard (C-267&268/91)
    limits of Article 28 Court held that if the national prohibition concerned not the intrinsic qualities of the product but the way it was sold, thus constituting a selling arrangement, and, in later cases, was not discriminatory in fact and in law, the national prohibition would be acceptable and would not breach Article 28. Keck and Mithouard, two supermarket owners, sold goods at a loss which was contrary to French law. When they were prosecuted they argued that the law was contrary to Article 28 as it restricted the volume of imported goods. The ECJ said that it considered it necessary to re-examine and clarify its case law on this matter. It said it was going so in view of the increasing tendency of traders to invoke Article 28 to challenge rules which limited their commercial freedom, even though the rules were not aimed at products from other Member States. The ECJ drew a sharp distinction between obstacles to the free movement of goods arising from rules laying down the requirements to be met by goods (such as designation, form, size, weight, composition, presentation, labelling and packaging) on the one hand, and rules relating to methods of sale on the other hand. Restrictive rules applying to goods as such continue to be governed by Cassis. By contrast, national rules restricting or prohibiting certain selling arrangements will not be treated as hindering intra-state trade provided they apply to all affected traders operating within the Member State concerned, and also provided that they �effect in the same manner, in law and fact� the marketing of domestic goods and imports from other Member States. Thus it can now be argued that the ECJ distinguishes between rules that relate to the characteristics of the goods (still covered by Cassis), and those rules concerning selling arrangements for the goods (now outside Article 28).
  16. Case 34/79 R v Henn and Darby [1979] ECR 3795
    public morality-Article 30 EC confers a discretion on the Member States to set their own standards provided that, as was the case, no lawful trade in such goods was allowed within the UK either: �In principle, it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory.�Defs were prosecuted under English law for importing obscene films and magazines from the Netherlands into the UK. They raised a �eurodefence�: that this was contrary to the free movement of goods laid down by Article 28 EC. The case eventually reached the House of Lords and a preliminary reference was made to the ECJ as to whether the UK could rely on Article 30 EC to prevent these imports on public morality grounds.

    • Case 121/85 Conegate Ltd v HM Customs and Excise [1986] ECR 1007,
    • Article 30 EC grounds-rule must not be used to support �arbitrary discrimination or disguised restrictions�. The UK ban on inflatable �love dolls� from Germany would be disproportionate in a situation where, within the UK, sale of such products was not banned, although there were certain restrictions on how and where they could be sold.