A110 is decided to prevent discriminatory internal taxing and the ECJ demands complete neutrality of internal taxation. Can have any scheme of tax as long as not discriminatory. A tax system will be compatible with A110 only if it excludes any possibility of imported goods being taxed more than similar domestic goods. Dividing line between A100(1) and (2) can be problematic as not always easy to tell if goods are similar. 2 is designed to catch good that may not be similar but will be in direct competition with each other eg wine and beer.
MEQRS can be defined in Directive 70/50 as including conditions in respect of packaging which applies only to imported goods, preference of purchase of domestic goods, limiting publicity of imported goods or making it mandatory for importers of goods to have agent in the importing state. Import and export licences are caught in A34. Member State legislation which contains rules on origin marking will normally be acceptable only if the origin implies a certain quality, materials, a particular form of manufacturing, or where origin is indicative of a special place in the tradition of a country. The general principle is that A34 applies to state measures and not those of private parties. The ECJ knows and is wary of the many indirect ways states can attempt to favour their own products.
Cassis judgement encapsulated the principle of mutual recognition. Also built upon paragraph 6
of Dassonville in which the ECJ introduced the rule of reason: in absense of harmonisation, reasonable measures can be taken by a state to prevent unfair trade practises. The effect of Cassis was deregulatory: it rendered inapplicable trade rules that prevented goods lawfully maketed in one state from being imported in another state.
A35 (quantative restrictions on exports) it seems will only apply in discrimination. Established in Groenveld that A35 caught national measures which treated differently the domestic and export trade of a member state so as to provide an advantage for the domestic market at the expense of trade of another member state.
E White- 'as the judgement of the Court in Cassis clearly shows, MS are not entitled to require that the imported products have the same characteristics as are required of, or traditional in, domestic products unless this is strictly necessary for the protection of some legitimate interest.'
A36 provides defences to discriminatory measures. The court has construed this strictly. Will be closely scruitinised to ensure the defence is warranted. Proportionality test. Burden of proof rests with MS. Has rejected arguments that public policy can embrace consumer protection. In Biologische Producten it said that dual checks would not be lawful where they unnecessarily imposed technical tests that had already been done in the state of origin.
Defences to indistinctly applicable rules- ECJ has often rejected consumer protection justifications stating that adequate labelling requirements can achieve the national objective with less impact on EU trade. Labelling requirements that demanded the purchaser was provided with sufficient information about the product in order to prevent confusion with similar products, could be justified, even if the effect was to make it necessary to alter the labels of imported goods. Like to think of consumers as clever. Mandatory requirements in Cassis is not exhaustive. Harmonisation may render it impossible for a state to rely on a mandatory requirement. Whether it has this effect will depend upon whether the measure is directed at total or only minimum harmonisation.
The Commissions response to Cassis- the judgement in Cassis was in part a response to the Commissions difficulties in securing MS acceptance of harmonisation measures. Rendered indistinctly applicable rules which impeded trade incompatible with A34 unless saved by mandatory requirements.
Commission Communication October 1980- has the principle of mutual recognition. A producer normally only has to comply with the national rules of one state for its goods to move freely in the EU. Firms can choose between different national regulations. Consumers can choose between
products that apply with these rules. This creates a 'competitive process among the different national rules: the choice of producers of where to produce and of consumers of what to buy will determine the best rules.' Cassis caused the commission to re-orient its legislative programme and concentrate on national rules that were still valid under the Courts case law.
The Commissions paper of Mutual Recognition emphasised that it did not always work effectively and it made proposals to improve. Should be increased monitoring with measures to improve awareness. Should include clauses in national legislation. Member State is given 21 days to allow or deny goods and they have to give a reason why. Must set up 'Product Contact Points' which provide info to importers about technical rules applicable to particular types of product, and information about the principle of mutual recognition in that state. The Mutual Information or Transparency Directive requires that a State inform the Commisson before they adopt any legally binding regulation specification.
ECJ often takes a robust view of consumers and has given relatively little attention to the prospects of customer confusion.
Jozon 'the enlarged EU and Mandatory requirements'
- proportionality for mandatory requirements contains three tests- suitability, necessity and the true proportionality of the measure. Suitability means it must be appropriate for acheiving the interest it pursues. CoJ has shown openness to accepting justifications even if it has an economic factor. Decker- 'it cannot be excluded that the risk of serious undermining of the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying a barrier. Difficult in practise to draw a line between economic and non economic aims.
- Protection of the environment- have multiple economic consequences which cannot be isolated from their non economic goals. Environmental regulations are justified because of the negative externalities created by pollution generating economic activities. Courts openness to different levels of domestic protection for the environment, depends on the degree of concern at a Community level for the specific interest in question. The flexibility leads to a lack of legal certainty but may also be appreciated as fertile ground for increasing the diversity of domestic regulatory needs in the enlarged EU.
- Consumer protection- scientific evidence is balanced with local conditions in order to assess the necessity and suitability of the measure, but the weight of the effect of the measure on the volume of trade is still a strong consideration. It is for national authorities who invoke the defence to prove suitability.
Jozon 'the enlarged EU and Mandatory requirements'
- Most states do not prove it. When scientific uncertainty exists regarding the existence or extent of risk to humans it must be accepted that the member states may take protective measures without having to wait until the reality and seriousness of the risks are demonstrated. In both areas the community competence is governed by the principle of minimum regulation.
- Inconsistencies make it hard for MS to prepare cases. A revised test of proportionality should have three sections- test of externality, suitability of measure to achieve the aim, and the necessity of the measure. During the first year of membership it is expected that the COJ will have a very high number of complaints against new MS.
- Enlarged EU and its diversity raises questions about the future of the regulatory approach of the Internal Market. Just because a candidate country has transposed more than was requested doesnt mean that it will be well harmonised on accession.
- Keck decision was based upon the distinction between dual burden rules and equal burden rules. Rules concerning selling arrangements imposed an equal burden on all those seeking to market their goods in a certain territory. Didnt impose extra costs on the importer, their purpose was not to regulate trade, not prevent access to the market. Not within A34 provided they were not discriminatory.
- Keck- static and dynamic selling arrangements- desire to limit A34 but Keck is problematic. The problem resides in the ambiguity of the meaning of 'selling arrangements.' Two qualifications- i) rules concerning sales characterised as relating to the product- it is open to the ECJ to characterise rules which affect selling arrangements as part of the product itself and hence within the ambit of A34. Familiapress- even though the relevant national legislation is directed against a method of sales promotion, in this case it bares on the actual content of the product. Not concerned with selling arrangements under Keck. Constitued a MEEQR under A30. ii) differential impact in law or fact- even if a national regulation is categorised as being about selling it will still be caught by A34 if it has differential impact, in law or fact for domestic traders or importers.
- Indistinctly and distinctly applicable rules- product use- cases concerned with how the 'use' of products should be regarded. It is clear from the ECJ's formulation in the two cases on product us that A34 covers three types of national rules-
- those that discriminate, those that impose product requirements and those that hinder or inhibit market access. National rules concerning sales are not regarded as inhibiting market access, and are only caught in so far as they apply differently in law or fact to domestic and external products. The case law prior to Keck shows the difficulties in defining the outer boundaries of A34. Keck was criticised for being overly formalistic, by drawing a distinction between rules relating to the characteristics of a product and those concerning selling arrangements, which is unsatisfactory. This disatisfaction led to the call to focus on market access.
Weatherill 'After Keck' 1996
- Keck was intended to empower national courts to dismiss far fetched attempts to deploy internal market law which were clogging up the judicial system with purely local affaris. While the rigid formalism of Keck may have been appropriate as an antidote to the wilder excesses of the then prevailing case law, it is now gratifyingly possible to discern a more sophisticated approach to internal market law emerging from Luxembourg.
- Keck shows the courts unwillingness to 'exercise a power of review over local regulatory choices that do not damage the realisation of economies of scale in an integrating market.' Ruling was flawed by the absense of an adequate articulation of just why it was possible to conclude that no sufficient impact on trade between the states was shown, it diminshed its value as a turning point on the case law by failing to name some of the decisions it overruled and was marred by the courts hint that over ambitious traders were at fault in seeking to exploit peculiaraties which had been introduced into law by the court itself. Keck test which holds that A30 does not catch 'the application to products of other MS of national provisions restricting or prohibiting certain selling arrangements provided that these provisions apply to all affected traders operating within the national territory and provided that they apply to all affected traders operating within the national territory, and provided that they affect in the same manner in law and fact, the marketing of domestic products and of those from other MS' has a disturbingly formalistic tone.
Weatherill 'After Keck' 1996
- Risk created in Keck is shown in Commission v Greece where Greek rules forbidded the selling of infant milk in anywhere but pharmacies. The court repeated the Keck formula and found the criteria fulfilled. It regarded the rule as a mere limitation on commercial freedom at the point of sale, applying to all products irrespective of origin. A30 didnt apply. It is submitted that the insistence of AG Lenz that A30 must be deployed as a tool of internal market policy, contrasted with the Courts narrower focus on factual and legal equality, represents the key tension that Keck has made.
- In LeClerc AG Jacobs thought Keck reasoning was unsatisfactory in two ways. 1) he attacked the category of 'selling arrangements' as inappropriately rigid, preferring the single test of general application. 2) expressed the view that the test of equality of application is out of line with the objectives of the treaty- principally the quest is to establish a common market. He feels that the appropriate test is whether a measure exerts substantial restriction on that access. However the court stuck with Keck and said 'A30 does not apply where a MS prohibits the broadcasting of televised advertisements for the distribution sector.' Keck is dangerous as a wider principle, for it takes insufficient account of the dynamic process of opening up markets previously fragmented along national lines.
- Notion of selling arrangements- further refinement is needed before a test can be suggested that is suitable for determining whether national rules that affect trade in imports
Weatherill 'After Keck' 1996
- and exports of both goods and services require justification by the regulator according to the standards of Community law. It is submitted that the coherence of the Keck ruling derives no help from its reliance on an invented special category of rules affecting 'selling arrangments.' Some laws affecting selling arrangements have been found to apply unequally. Trading rules affecting 'selling arrangements' as a special category wrongly induces focus on the form of a measure instead of its effect on trade, contrary to Dassonville.
- Suggests abandoning selling arrangements and using 'measures introduced by authorities in MS which apply equally in law and fact to all goods and services without reference to origin and which impose no direct or substantial hindrance to the access of imported goods or services to the market of that MS escape the scope of application of A30 and 59.' Probably the position is now that the trader must show how the construction of an integrated strategy for the internal market and the realisation of economies of scale is directly or substantially hindered by the national rule before the state is called upon to justify its rules. A mere reduction of in volume of sales of imports as a result of the national measure is inadequate.
- Court has consistently refused to accept that a trader in State A is able to challenge the rules of State A- there is no prohibition against reverse discrimination under A30 or 59.
- The principle significance post Keck is the welcome confirmation that internal market law is not confined to the supervision of measures that are legally or factually unequal.