DEROGATIONS AND JUSTIFICATIONS 
FOR INDISTINCTLY APPLICABLE MEASURES

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Geddo [1973]
Quantitative Restrictions are “measures which amount to a total or partial restraint of, according to circumstances, imports, exports or goods in transit”.
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Delhaize [1992]
QRs include “non-tariff” quotas limiting the quantity of goods coming into a state or leaving the state
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Rosengren [2007]
QRs also cover the situation where the state generally allows the import but it prevents it in specific cases.
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Henn and Darby [1972]
QRs also include a ban on imports or exports which is the most “extreme form of prohibition”.
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Case 8/74, Procureur du Roi v Dassonville, [1974] ECR 837.
All trading rules enacted by Member States which are capable of hindering directly or indirectly actually or potentially intra-[Union] trade are to be considered as measures having effect equivalent to quantitative restrictions
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Weiler (1999) noted
Dassonville supports a market access reading of Articles 34-35 TFEU, rather than a discriminatory approach.
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Joined Cases C-267 and C-268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097 - conditions
1. Universality (Measures which affect all selling arrangements in the state are allowed if) 2. Neutrality (those measures affect both in law and in fact, the products the same amount)
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Kramer [1976
the court said that national rules limiting fishing in order to conserve fish stocks did not concern a trading rule and so did not constitute an MEE - Art 34 TFEU applies to all trading rules so Art 34 TFEU concerns the Marketing stage only
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Enacted by Member States
the measure does not need to be enacted to fall within the scope of Article 34 as a consistent policy or practice will suffice, and as Buy Irish showed applies to bodies for whose actions the Government is responsible.
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Ex p API [1989]
Art 34/35 TFEU apply to bodies that regulate the conduct of a particular profession or access to the market
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Viking [2007]
Art 34 may apply to bodies such as trade unions, which have sufficient powers to interfere with free movement provisions.
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Para 66 of Ianelli & Volpi [1977].
Buy Irish, Ex p API, Fra.bo all support the fact that Art 34 has vertical direct effect
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Sapod-Audic [2002]
suggests that Art 34 does not have horizontal direct effect, in this case revolving around a contractual obligation to affix the green recycling triangle in products in order for a private party to sell them.
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Pigs Marketing Board [1978]
Art 35 does not have horizontal DE
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Spanish Strawberries [1997]
the state may have to take responsibility for a private parties actions which disrupt the application of Art 34 The State was held liable as they failed to “take all necessary and proportionate measures” to prevent FMoG being obstructed by a TP
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Schmidberger (Brenner Pass) [2003]
Less serious interference, and the State providing alternative mechanisms will not attract a sanction
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(Commission v Italy (Trailers)).
The need to show discrimination of the rule was emphasised in Keck, and it is clear that the Article prohibits not only distinctly and indistinctly applicable rules, but also those that hinder market access
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Orscheit [1994]
Loosely “directly discriminatory measures”: the imported goods are treated less favourable when the domestic one, when in objective terms they should be treated the same
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Directive 70/50 A2
sets out that imposing an additional requirement on the imported/exported good is a breach under Art 34 as they place a further burden on the importer (even checks, as these cause delays or transport costs).
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Define indistinctly applicable measure
one which on its face appears to apply equally to domestic and imported products. In these cases there is the same burden in law, but a different burden in fact - Indirect Discrimination
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indistinctly applicable measure - Exceptions
These measures can escape the prohibition in Article 34 TFEU: either by meeting the requirements for the application of a derogation under Article 36 TFEU or where the Mandatory Requirements apply
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Cassis de Dijon Para 8
Obstacles to movement within the Community resulting from disparities between national laws relating to the marketing of the products in question must be accepted in so far as those provisions maybe recognised as necessary in order to satisfy MR's
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Mutual Recognition - Cassis
“There is therefore no valid reason why, provided that they have been lawfully produced and marketed in one of the Member States, alcoholic beverages should not be introduced into any other Member State”
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ase C-142/05, Åklagaren v Mickelsson and Roos, [2009] ECR I-4273.
Introduced the Market Access Test as being part of the methodology for determining whether a State measure which is challenged under Article 34 TFEU constitutes a restriction on the FMoG. The MAT not replace any other method but adds to them
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The Article 36 TFEU Derogations - member states can use against Art 34/35 violations.
1.Public Morality 2. Public Policy/Security 3.Protection of Health & Life of Humans, Animals or Plants 4. Protection of National Treasures possessing artistic, historical or archaeological value 5.Protection of industrial or commercial property
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Case 177/83 Ringelham [1984] ECR 3651:
Whatever interpretation is to be given to the term “public policy” it cannot be extended as to include considerations for consumer protection.
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Commission v Italy (statistical levy) & Com v Belgium (Warehouses)
Charges for services rendered and prohibited unless they provide a service of direct benefit to the importer with a proportionate charge
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Ford Espana v Estado Espanol
This is the authority of the proportionate charge
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Case 18/87 Com v Germany
Charges for services rendered are allowed when mandated by EU Law
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Cassis Rule of Reason
Restrictions on trade resulting from national provisions on product marketing, which differ from those applying in other MS are allowed if they satisfy mandatory requirement - only applies to indistinctly applicable measures.
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Other cards in this set

Card 2

Front

Delhaize [1992]

Back

QRs include “non-tariff” quotas limiting the quantity of goods coming into a state or leaving the state

Card 3

Front

Rosengren [2007]

Back

Preview of the front of card 3

Card 4

Front

Henn and Darby [1972]

Back

Preview of the front of card 4

Card 5

Front

Case 8/74, Procureur du Roi v Dassonville, [1974] ECR 837.

Back

Preview of the front of card 5
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