EU Internal Market

Keck Peter Oliver/Wulf-Henning Roth (2004) observation

"Couched into formal categories" = product rules and selling arrangements Product rules "tend to hinder or impede access to the market" Selling arrangements "typically leave such access unimpeded So real test = market access test So Keck = in line with traditional case law, other than selling arrangements which have an indirect or remote effect on interstate trade

TEU Art 1

"Creating an ever closer Union"

Effect of EU law on national law - supremacy and direct effect Costa v ENEL

"EEC Treaty has created its own legal system" Which has become integral to domestic legal systems "The MS have limited their sovereign rights" "Have thus created a body of law which binds both their nationals and themselves"

TEU Art 3(1)

"Promote peace, it's vales and well-being of its peoples"

Aklagaren v Mickelsson, Roos (2009) stage 2

"Provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary to attain it" = public interest justification and proportionality test

Keck Peter Oliver/Wulf-Henning Roth (2004) on other regulations

"Should not be forced artificially into one of the two categories"

Keck formula quote

"The application to products from other MSs of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between MSs within the meaning of the Dassonville judgement" "so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other MSs"

Mandatory requirements = relating to

"The effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer" = Court's open-ended list

Gormley on distinctly vs indistinctly applicable measures

"There is still a clear distinction between the Treaty-based justifications and those finding their basis solely in the case law under the 'mandatory requirements'; to assimilate them is ... a fundamentally flawed approach"

TFEU Art 3

"Union shall have exclusive competence...[int he establishment] of the competition rules necessary for the functioning of the internal market"

Distinctly applicable measures

(Directly discriminatory measures) To be considered under principles of Art 36 (legislature) as more dangerous to common market

Indistinctly applicable measures

(Indirectly discriminatory measures) To be considered under Cassis de Dijon (judge made)

Aklagaren v Mickelsson, Roos (2009) stage 1

1) - Measures treating other MSs less favourably... - In absence of harmonising national legislation... - MHEE = rules laying down requirements (even if applied to all products alike) on goods coming from other MSs where they are lawfully manufactured and marketed 2) Use restriction may have considerable influence on behaviour of consumers = a Dassonville and market access (for national court to ascertain)... If yes = MHEE = widening of Art 34 again, despite Keck, use restriction = new concept which re-empowers the court... Or if greatly restricts use = MHEE

Cassis de Dijon consequences x2

1) Burden of proof on regulating host state = turns on head initial embrace of host state rule (primacy) ... Court introduced key notion for internal market: goods lawfully produced and marketed in MS A can be sold in MS B without further restriction or control, unless MS B can successfully invoke public interest justification = MUTUAL RECOGNITION 2) Extended narrow scope of public interest justifications

Commission v Italy (2009) on stage 1 - MHEE?

1) Dassonville - MHEE = capable of hindering "directly or indirectly, actually or potentially" intra-community trade 2) Obligation to respect principles of non-discrimination, mutual recognition and free access = Cassis and Keck 3) In absence of harmonisation of national legislation Obstacle = rule applied to imported goods from MS where good lawfully produced and marketed = MHEE, even if applied to all products alike (indistinctly applicable) CONTRAST selling arrangement = ok (if applies to all traders, in same manner, in law and in fact, marketing) = market access = keck 4) :. Measures which treat other MSs less favourable = MHEE (= reformulation of MHEE, narrowing to its true essence = prevention of discrimination)

Dassonville consequences 1

1) Dramatically expands number and types of cases in which MSs required to justify social choices in regulating the market place and it's public sphere, simultaneously constructing narrow derogations = creates presumption that any obstacle = improper and must be justified

Schmidberger (2003) remarkable case

1) ECJ = mores sensitive to human rights, particularly compared to earlier case law, now that internal market = largely achieved (and obstruction =/= extremely serious or protectionist) 2) ECJ confirms normative status and significance of both sets of norms w/o positing general/abstract hierarchy = context-sensitive application of proportionality principle 3) ECJ emphasises margin of discretion VAV MS

Cassis de Dijon application of Dassonville formula

1) Trade barrier? Yes, German provisions 2) Public interest justification? ? Court began by insisting on the primacy of host state control (Germany) in the absence of common EU community rules Court proceeded to qualify: IF AND ONLY IF the rules of the host state can carry a sufficient justification in the public interest to prevail over the interest of free trade and the integration of markets = new and judicially created public interest justifications independent of Art 36 (closed box) = MANDATORY REQUIREMENTS (new box)

Trailer case and Swedish jet ski case NEITHER

1) makes it particularly difficult for imported vs local goods 2) demands product adaptation as a precondition for access to target market

Cassis de Dijon German justification

1) proliferation of alcoholic drinks with a law alcoholic strength = induce a tolerance among consumers 2) drinks with lower alcoholic strength would have an unfair advantage over stronger, more costly German drinks ECJ unconvinced

Commission v Italy (2009) on stage 2 - public interest justification?

1) stage 1 confirms = MHEE, stage 2 = "UNLESS IT CAN BE JUSTIFIED OBJECTIVELY" 2) ensuring road safely = mandatory requirement in Cassis? = proportionality test = appropriate and necessary? Necessary = degree of protection may vary state to state = margin of appreciation = allows legitimate diversity = lee way = least restrictive measure?

Dassonville consequences 2

2) Institutionally = thrust the Court into the centre of substantive policy dilemmas: ECJ becomes arbiter of delicate social choices, reconciling trade with competing social policy issues

Trailer case and Swedish jet ski case BOTH

3) can be freely sold, but not USED in the outlawed circumstances

Public sensibilities

70s consumer protection 80s environmental protection

Jacobs

= "original in a more profound sense"

JHH Weiler - dynamism and reliance on law and legal institutions

= ECJ through purposive interpretations of Treaty provisions = encourage market-actors to invoke fundamental economic freedoms before domestic courts = thereby enlists private litigants as "private attorney generals" in the process of market making (integration through law) = court is increasingly grappling with competing interests = must strike fair balance (eg. Free trade and consumer protection, or fundamental and human rights)

More remarkable than Schmidberger (2003)

= Omega Conflict between freedom to provide services (fundamental economic freedom) (laser dome simulating homicide lawfully produced and marketed in UK) vs. imperative enshrined in German Basic Law to protect human dignity ECJ had to balance Due to German history, Court allowed ban (insisted = CONTEXTUAL) = demonstrates "European way of law" (Slaughter) =/= unitary

Hallstein 1972 on market integration

= a dynamic, guiding principle Each step = another step "to be worked out on a European basis"

Free trade and human rights - ECJ (traditionally)

= primarily an economic court = guarantees fundamental economic freedoms in Treaty Effective judicial system 1) enlists national individual plaintiff as private attorney generals 2) enlists national legal systems as effective enforcement mechanisms

Dassonvile formula 2

Absence of a Community system for consumers = MS may take measures to prevent unfair practices =subject to condition that these measures 1) = reasonable 2) =/= hindrance to trade, 3) accessible to all Community nationals =under exceptional circumstances = public interest justification (defined very narrowly by the court)

Schumann Declaration 1950

An "organised and living Europe" = "indispensable"

Free trade and human rights - Schmidberger (2003) facts

Austrian authorities allowed demo group to stage protest on motorway connecting N Europe and Italy, closing road for 30 hours Schmidberger, transport company, claimed damaged arguing that government conduct = infringer Treaty provisions on free movement of goods

Countryside Alliance v Attorney General (2007) judgement

Ban =/= selling arrangement (or product rule either) - Keck (like Omega) = "incumbent" to refer to ECJ, but accepted to continue judgement But restriction = justifiable in Community law (Omega, least restrictive, margin of discretion ie. prevention of suffering of animals) :. no ECJ ruling required

Dassonville facts

Belgian rule = certificate of designation from exporting country if goods bear designation of origin (Scotch whisky) Dassonville imported into Belgium from France Scotch whisky without certificate from British authorities (which would have been difficult to obtain given the goods were already circulating third country, France) Belgium prosecuted. Dassonville argued that rule = MHEE to a quantitative restriction of free trade (it was, as measure not easily obtainable as good already circulating another MS)

Keck Peter Oliver/Wulf-Henning Roth (2004) in favour

But in favour of Keck: if reduced to its essential elements = offers charter for an application of the four freedoms (creating an internal market characterised by the abolition of the free movement of goods, persons, services and capital, ensuring market =/= distorted)

Euro defence - Countryside Alliance v Attorney General (2007) facts

CA complained that Hunting Act 2004 = incompatible with ECHR and inconsistent with EC law. Sought reference to ECJ whether national measure preventing economic activity of fox hunting fell within Art 34 reducing cross border trade (Irish horses provided to UK and UK hunting based holidays for EU customers)

Cassis de Dijon facts

Cassis could not be imported into Germany as alcoholic content too low to satisfy German law requirements = obstacle to free trade? Problem addressed = inter-state regulatory diversity ie. exclusion from the German market a product lawfully produced and marketed in France = Germany must justify

Free trade and human rights Schmidberger (2003) held

Countervailing interest = fundamental right > fundamental freedom = significant that court considered and accepted supremacy of another source of law (over EC law)

Home state

Country from which you export

Host state

Country into which you export

Commission v Italy (2009) stage 1 observation

Court blends all formulas

Free trade and human rights - ECJ (more recently)

Court has developed jurisprudence of "general principles of law" = enables court to incorporate within Community law the substance of the ECHR and fundamental rights protected by national constitutions = court must balance with market freedoms

Gourmet held

Court held regulation = impedes foreign market access more than domestic "with which consumers are instantly more familiar"

Following strategic litigation

Courts drew back from broad Dassonville formula which could be exploited to challenge national measures which had a limited effect on trade and imports and were not within the intended ambit of the Treaty = Keck

Cassis opens door to strategic litigation

Courts inited (provoked?) strategic litigation Sunday trading litigation = illustrates how EU law can affect situations which seem to be purely domestic Contrary to the Shops Act 1950, several retailers opened shop on Sundays = prosecuted by local authorities... In response, retailers challenged restrictions as contrary to EU law on free movement of goods (reducing shops overall sale, from which a significant part of their sales involved products from other MSs = hindrance of trade)

Free trade and human rights - Schmidberger (2003) govt justification

Defended conduct = necessity to protect citizens' human rights protected by 1) Austrian Constitution 2) ECHR (And authorities mitigated effect of demo by publicising alternative routes)

Dassonville formula 1

Developed by ECJ as "all trading rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as MHEE to quantitative restrictions"

Gourmet issue and process

Domestic law inconsistent with Art 34? MHEE? Dassonville read in light of Keck Courts translates weird Keck formula into MARKET ACCESS test = test becomes instrument with which the court can measure IN PRACTICE

TEU Art 3(3)

Establish internal market "for the sustainable development of Europe based on...a highly competitive social market economy"

Keck formula

Excluded selling arrangements from the ambit of Article 34, provided, they affected both domestic and imported products, in law and in fact, in exactly the same manner:

Cassis de Dijon

Expanding the public interest justifications = concepts of mandatory requirements and mutual recognition

TFEU Art 34/36 Weatherhill 2004 Gormley

Free Movement of Goods Quantitative restrictions on imports and all measures having equivalent effect = prohibited between MSs "Familiar pattern" of a two-part judicial inquiry has emerged 1) Court considers whether a challenged - domestic - measure = trade barrier (MHEE) And then, if threshold crossed, (Art 36 = derogations) 2) Court examines the force of the public-interest justification advanced by the - national - regulator A justified measure does not mean it ceases to be a MHEE, merely that in the instant case = acceptable (ie. purpose, necessity and proportionality of the measure)

Single market

Fundamental to the evolution of the substantive law of the EU legal order

Developments since Keck

Gourmet 2001 Burmanjer 2005 Karner 2004 Douwe Egberts 2004

Fundamental rights operate in two ways

Interconnected and often complementary 1) = negative defensive individual rights AGAINST THE STATE 2) = "constitute one of the essential foundations of a democratic society" = positive obligation BY THE STATE to protect individuals' interests (against restrictions primarily attributable to other private actors)

Commission v Italy (2009) facts

Italian rules forbidding the use of trailers attached to motorbikes on public roads

Cassis de Dijon mandatory requirements test

Jacobs - in the absence of common rules at Community level, goods lawfully produced in any MS can in general be imported into any other state... However, obstacles to free movement resulting from disparities between national laws = accepted if: 1) regulatory rules applicable to domestic and imported products without distinction 2) regulatory rules necessary to satisfy certain mandatory requirements recognised by Community law 3) regulatory rules proportionate to the aim in view... ie. they constitute a measure which least restricts the free movement of goods

Keck Peter Oliver/Wulf-Henning Roth (2004) critisicm

Keck has been criticised for being too formalistic/unsatisfactory

Keck

Limits the catch of Art 34 = certain selling arrangements do not have to be justified... Courts carving out space in the Dassonville formula where measures can survive

Effect of EU law on national law - supremacy and direct effect Van Gend en Loos

Objective of EEC Treaty = establish a common market Treaty > agreement creating mutual obligations between MS, but also their peoples (preamble) TFEU Art 267 = "community constitutes a new legal order of international law" --> "the states have limited their sovereign rights, albeit within limited fields"

Aklagaren v Mickelsson, Roos (2009) justified?

Objective proportionate? = 1) indisputably appropriate 2) necessary? MS cannot be denied possibility of attaining objective (protection of environment) by generally rules necessary due to geography and easily managed by national authorities But general prohibition = beyond necessary But proportionate if 1) requires implementing measures 2) authorities made use of conferred power 3) measures adopted within reasonable time

Schmidberger (2003) stage 1

Obstacle = arises out of actions by private actors (so not a measure?) But imputable to the state as govt didn't adopt measure Action = omission and omission = action = MHEE

Hallstein 1972 on the 'Old European system'

Old 'European system' = "a multiplicity of strictly independent sovereign states. They did not always act in isolation. They formed alliances, but these were never permanent" = delicate balance of power Mere democracy replaced by the 'European idea' = market integration and RoL

TFEU Art 267

Preliminary Reference Procedure - CJEU to give preliminary ruling 1) on interpretation of the Treaties 2) on validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union Assures uniform interpretation of the Treaty (Van Gend en Loos)

Strategic litigation puzzles domestic judge

Referred to ECJ = Stoke on Trent BC v B&Q =/= trade barrier as it "affects the sale of both domestic and imported products"

Mutual recognition consequence

Replaces dual regulation of product with single regulation by home state (host state is required to respect) Presupposes a mutual trust (and equivalence) in the regulators of other countries... Possible economic consequence = deregulation (pricing themselves out of the market, so lowering of protection)

Importance of Cassis de Dijon

Seemingly insignificant case on the facts (minor commercial activity), however courts jump on the opportunity to expand doctrine 1) Dassonville derogations = narrowly construed... Cassis mandatory requirements allow for change in public sensibilities, introducing for legitimate social reasons measures which aren't recognised in Art 36 2) Resolves problem of market fragmentation. Need for harmonisation = less pressing according to the principle of mutual recognition

Aklagaren v Mickelsson, Roos (2009) govt justification

Swedish govt attempted justification by 1) Objective of environmental protection (Cassis mandatory requirements) 2) Art 36 (protection of health and life of humans, animals or plants) = closely related objectives = to be examined together

Gourmet facts

Swedish legislator concerned that the Swedish drink too much. To counter-steer alcoholic intake, advertising of alcoholic beverages = prohibited Traders argued = discriminatory effect on foreign traders

Aklagaren v Mickelsson, Roos (2009)

Swedish rule forbidding the use of jet skis in particular designated waterways in Sweden

Restrictions of use case x2

Trailer case: Commission v Italy (2009) Swedish jet-ski case: Aklagaren v Mickelsson, Roos (2009)

Commission v Italy (2009) - justified?

Use restriction = justified on ground of road safety

Schmidberger (2003) stage 2

Valid public interest justification? Austria has positive obligation VAV it's own citizens (freedoms of speech and assembly) Correct balance depends on proportionality test... Neither economic freedom nor fundamental right = guaranteed in absolute Both "must be viewed in relation to their [social] purpose" ... Austria = justified (least restrictive measure of intra-Community trade)