Free Movement of Goods: Derogations and Justifications

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  • Created by: Hope
  • Created on: 09-05-16 16:08
What is the requirement for justifications?
Any justification put forward by MS must be in accordance with EU law
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Who interprets justifications?
The commission and the CJEU
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What is the problem with the system?
A lot of MS legislation gets struck down under art 34, but the Eu doesn't have the power to re-regulate so this creates a gap
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What are the characteristics of derogations? How do they come about?
They arise under art36. They are a fixed list of exceptions to the prohibition in art34, none of them permit economic derogations and they have to be proportionate
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What are the characteristics of justifications? How do they come about?
They arise under the rules in Cassis, open list of grounds the CJ will recognise as basis for regulation by the MS, can only be used if it applies equally to home products
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What is Art 36 and how does it apply?
Applies to discriminatory measures and non-discriminatory measures, covers bans on imports and MEQR, fixed list, can't be used for economic objectives, proportionate & necessary, no EU leg existing
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What are the characteristics of mandatory requirements introduced in Cassis?
They balance restriction against the justification, non-exhaustive list, only applies to indistinctly applicable measures, measures must be legit, must be proportionate
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What usually happens in cases of mandatory requirements?
The CJ tend to acknowledge the mandatory requirement but find it isn't proportionate
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What does Art 36 list as some of the accepted grounds for restrictions?
public morality/policy/security, protection of health and life of humans/animals/plants, protection of national treasures of artistic/archaeological value or protection of industrial/commercial property
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What shall such a prohibition not constitute?
a means of arbitrary discrimination or disguised restriction on trade between MS
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What are some case examples of public policy?
Ringleham, Thompson BUT requires MS to take all reasonable action to promote free movement of goods
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What are some case examples of public security?
Campus oil, cullet
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What are some case examples of public morality?
Henn and Darby, Conegate
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What is the test used for protection of health?
Is there an EU system of protection in place? If yes, can't use it as a derogation, if not, level of protection is a matter for MS on basis of scientific evidence?
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What are some case examples for protection of health?
Scotch Whiskey Association, Ditlev Bluhme, Preussen Elektra
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What are the general requirements whenever a derogation is sought to be pleaded?
Exceptions are construed narrowly, measures must be suitable for securing the aim, must be proportionate
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Are there any underlying conditions?
There must be no arbitrary discrimination or disguised restrictions to trade
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What are some examples of this?
Commission v UK, Commission v France
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What are the other names for mandatory requirements?
Imperative requirements, over-riding requirements in the public interest"
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What grounds may be recognised under this?
Environmental protecton, effectiveness of fiscal supervision, fairness of commercial transactions, improvement of working conditions, protection of culture, road safety
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What are the conditions for Cassis to apply?
Measure must; be indistinctly applicable, have a legitimate non-economic aim, be necessary, be proportionate
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Card 2

Front

Who interprets justifications?

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The commission and the CJEU

Card 3

Front

What is the problem with the system?

Back

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Card 4

Front

What are the characteristics of derogations? How do they come about?

Back

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Card 5

Front

What are the characteristics of justifications? How do they come about?

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