EU Law FMOG

Topic Concerned with?

Non-pecuniary (non-money based) barriers to trade

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What legislation do we need to know? 4

Directive 70/50 (No longer formerly applicable, still good use for distinctly and indistinctly applicable measures, Arts 34/35 TFEU prohibits QRs and MEQRs for imports/exports, Art 36 justifies some measures

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Case: Meaning of Goods

Commission v Italy: Products that can be valued in money and are capable of forming commercial transactions.

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Art 36 TFEU, what are the justifications? 5

Public morality, public policy/security, protection of health and life of humans, animals or plants, protection of national treasures, protection of industrial or commercial property

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What stops justification?

Arbitrary discrimination or disguised restriction on trade

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How can the legislation be applied? 2 cases

Can be enforced against public bodies R v Royal Pharmaceutical Society of GB, Can apply to part of MS territory: Ditle v Bluhme

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How can legislation be applied? 2 cases

Applies to bodies who have support of the government: 'Buy Irish', strict application, obligation on MS to ensure FMOG: 'Boycott'

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What constitutes a Quantitative Restriction? 2 cases: 1 definition, 1 example

Geddo: "A total or partial restraint on goods", R v Henn & Darby: Ban on **** constituted QR

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What constitutes measure having equivalent effect to quantitative restriction (MEQR)? Case

Dassonville Formula: "all trading rules enacted by Member States, which are capable of hindering, directly or indirectly, actually or potentially intra-community trade"

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Directive 70/50

No longer formally applicable, guidance on indistinctly applicable and distinctly applicable measures

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Obligations of Member States: 2 cases

'Boycott' - French failures to stop farmers blockade, Schmidberger - Closing of road for 30 hours, both came under ART 34

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Cassis de Dijon

Principles of mutual recognition and rule of reason, MR if someone is lawfully prod in MS is fine, RoR, measure must have been necessary to satisfy mandatory requirements

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Keck

Distinguished prod requirements from selling arrangements, former was prohibited, latter was not

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Further Case Law: 3.5 cases

Cassis: Idea of still being a dual burden due to labelling, reinforced in Familiapress, De Agostini/Gourmet allowed some selling arrangements to come under Art 34

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Use restrictions: 2 cases

Prohibited under EU law, Com v Italy - 'Trailers and Aklagaren (Swedish Jet Skis) a restriction on use would make people want to buy the product less, and so it would hinder trade, therefore being MEQR

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Exports: Art 35 TFEU

Same case law does not apply, EU interprets differently, less cases, MS do not want to limit exports

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Art 35, 3 cases

R v MAFF, UK couldn't prohibit exports of live animals - all MS slaughterhouses should be of EU standards, Groenveld - Measure prohibited if it benefits home market, Gysbrechts - Courts broader on what constitutes an MEQR

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Art 36 TFEU: Derogations

Achieves something more important than FMOG, list is exhaustive, no new grounds can be added, does not apply where there is harmonising legislation

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Public Morality, 2 cases:

R v Henn & Darby: Ban on **** justified under UK law, CJEU said MS should set the standards, Corngate - UK couldn't prohibit importation of blow up love dolls - no legislation prohibiting manufacture

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Public Policy/Security: 2 cases:

Rarely used derogations, and has narrow interpretation: R v Thompson, concerned coins, Campus Oil - Supplies of oil to Ireland was held to be a public security issue

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Protection of health and life of humans/animals/plants: 3 cases

Most common grounds: Sandoz: If you limit foodstuff, must provide scientific proof of damage it may cause (muesli bars), San Jose Scale: Same, apples did provide health risk, German Beer: additives actually helped, so measure was prohibited

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Protection of National treasures: 1 case:

Italian art treasures: Prohibition of exportation of important Art was fine

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Protection of industrial/commercial property

Linked to patents/trademarks

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Arbitrary Discrimination/Disguised Restriction on trade: 2 cases:

May not have the facts to apply, stops derogations. 'Grain and Fruit' - Com v France - France had measure that disguised restriction on trade and benefited home market, Newcastle disease: UK were doing the same with Turkey's

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Mandatory Requirements Cassis: 3 cases:

Environmental protection: Com v Denmark, Interests of social/economic policy: Oebel, National/regional socio cultural characteristics: Torfaen v B&Q

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EU Law FMOG

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