The free movement of goods
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- Created by: Emma13
- Created on: 19-06-18 15:58
What is the definition of the single market?
Internal market = removal of all obstacles to trade between MS, common policy towards 3rd P's, free movements of goods, persons, services and capitals (4Fs)
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What does Art 30 TFEU establish?
Prohibits duties (customs) and charges having equivalent effect
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What does Art 28 establish?
Prohibits custom duties on imports and exports and of all charges having equivalent effect and the adoption of a common custom tariff with 3rd countries
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What does Art 110 establish?
Prohibits discriminatory taxation on imports
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What does Art 34 establish?
Prohibits quantitative restrictions on imports and prohibits measures equivalent to quantitative restrictions - CvUK
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What is a QR and authority?
limited by amount or value, quotas or outright ban as in Geddo, state measures only Art 34
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What did Dassonville establish?
Any trading rules enacted by MS which are capable of hindering directly or indirectly, actually or potentially intra community trade. Anything that adds extra time or expense and applies to state measures only = MEQR
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What did Angry Farmers establish?
Failure for Government to intervene = MEQR
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What is a distinctly applicable measure?
Rules that treat imported products less favourably than domestic products
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What is an indistinctly applicable measure?
Apply overtly to all products but can hinder imports. Rules that apply equally to all goods irrespective of origins but are nevertheless capable of hindering imports. Anything that adds extra time or expense
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When can Art 34 not be applied to distinctly applicable measures?
Art 36 only. Evidence needed as no arbitrary discrimination/ disguised restrictions. Measure must be proportionate - necessary and no more than needed to achieve objective.
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What does harmonisation do to these justifications?
Where the measure/ rules have been harmonised at EU level, than a measure may not be justified under Art 36
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What are the exceptions set out in Art 36?
Public morality, protection of health/life of humans/animals/plants, public policy, protection of national treasures possessing artistic, historical or archaeological value or protection of industrial commercial property
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When can instinctively applicable measures be applied?
By using Art 36 exceptions and ECJ approach in Cassis
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What did CvUk establish?
Origin marking on products and advertising = disadvantage for imports as people favour domestic
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What did Re Restriction on importation of Souvenirs establish?
Distinctly applicable measure as applies to imported products only
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What did Walter Rau establish?
MEQR as Belgian legislation requiring repackaging put imports at disadvantage - applies to all
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What did Conegate establish?
Public morality - prohibition not justified as products were not prohibited in UK - arbitrary discrimination against imports
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What did Henn & Darby establish?
No lawful trade in item at all; importers not being treated differently = art 36 valid
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What did Re UTH milk/ Rene GMHB establish?
Protection of health/life of humans/animals/plants - ECJ held real health risk - burden of proof on MS to show risk. Scientific evidence needed
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What did Thompson/ Re Restrictions on Imported Souvenirs establish?
Public policy restriction; MS may only use public policy if there is a genuine and sufficiently serious threat to a fundamental interest in society as in Omega. Consumer protection n/a
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What did Italy(Art treasures) establish?
Protection of national treasures possessing artistic, historical or archaeological value
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What did Deutsche Grammophon establish?
Protection of industrial commercial property
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Is consumer protection covered by Art 36?
ECJ held not
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When would Cassis be used?
An approach to justify indistinctly applicable measures only
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What is 1st principle of Cassis?
Rule of reason - indistinctly applicable restriction allowed if measure necessary for mandatory consumer requirement of state and proportionate
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What is the 2nd principle of Cassis?
Mutual recognition - presumption; goods lawfully marketed in one MS should be marketed in another as in Beer Purity Laws and Walter Rau
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What happens if there is a law that prevents the principle of mutual recognition?
MS must rebut presumption - Art 36/ ROR, public health not sustained consumer protection n/a
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What is a mandatory requirement?
Legitimate reasons in the public interest list in Cassis under Art 36 not closed
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What are the mandatory requirements under Cassis?
Effectiveness of fiscal supervision, protection of public health, fairness of consumer transactions, defence of the consumer, protection of culture, protection of environment, protection of socio-cultural characteristics of country
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What did Bene-Zentral establish?
Protection of public health mandatory requirement
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What did Cinetheque establish?
Protection of culture mandatory requirement
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What did Re Disposable beer cans establish?
Protection of environment mandatory requirement
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What did Stoke On Trent establish?
Protection of socio-cultural characteristics of country mandatory requiremenet
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What did Walter Rau establish?
Proportionate measure = necessary + no more than needed to achieve objective
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What is a selling arrangement?
measures relating time time/ place/ price at which goods can be sold
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What is the Keck proviso and what does it do?
Selling arrangements not MEQR's unless they put imports at disadvantage; 1.apply to all affected trader within national terrirtory 2. affect in same in both law and fact (marketing) 3. not disadvantage imports
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Will measures relating to characteristics of product be MEQR?
Yes
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What is the effect of Keck?
Selling arrangements are not MEQR, comply with Dassonville; apply to all traders and affect in same manner (law and fact)
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What did Greece establish?
Sales only in pharmacies was a selling arrangement
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What did Hundermund and Leclerc Siplec establish?
Advertising restrictions was selling arrangement
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What did Punto Casa establish?
Restrictions on opening hours for sunday trading- opening hours restrictions not MEQRs imports no more disadvantaged than domestic
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What is a measure relating to characteristic of products?
Keck - Requirement to be met by..goods such as requirement as to designation, form, size, weight, composition, presentation, labelling, packaging
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What did Brand Names/ Clinique/ Mars/ Schwarz establish?
Changes to packaging ECJ held MEQR
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What is the effect of a harmonisation directive?
Provision of Art 36 and Cassis do not apply if the goods are covered by a harmonisation directive
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What is the nature of harmonisation?
The creation of similar standards throughout the Union would reduce the potential threat of a 'downward spiral' in standards arising from products and service providers seeking to move their base to the MS with the lowest regulatory burden.
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What is harmonisation?
the process by which the Union sets down a standard in a particular field that all domestic legal systems must meet
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What is positive harmonisation?
new standards introduced
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what is negative harmonisation?
removal of existing barriers by the striking down of national laws under art 34 ect
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What did Pure Chocolate case establish?
Even when harmonisation has occurred national practices die hard
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When can there be derogation from a harmonisation directive?
Art 114(4) introduced by SEA, MS deem is necessary to maintain national provisions on grounds relating to the protection of the environment or the working environment. Must notify commission and state grounds for maintain these rules
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What does Art 114(5) establish?
Requires notification to the commission if a MS deems it necessary, must be based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that MS
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What happens is the MS relies on Art 114(4)/(5)?
The Commission may then approve/reject national provisions having verified that they do not constitute a means of arbitrary discrimination or disguised restriction on trade Art 114(6)
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What is the aim of harmonisation?
To create a common set of rules governing particular products. Rules set standard, but the MS implement them according to their own legal principles
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Other cards in this set
Card 2
Front
What does Art 30 TFEU establish?
Back
Prohibits duties (customs) and charges having equivalent effect
Card 3
Front
What does Art 28 establish?
Back
Card 4
Front
What does Art 110 establish?
Back
Card 5
Front
What does Art 34 establish?
Back
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