EU Law - Free Movement of Goods

Distinctly applicable measures

Different burden in law + Different burden in fact = Distinctly applicable measure Measures which are applied only to imported (or exported) goods; the measure is not applied to domestically produced goods. They are measures which explicitly distinguish between domestic and foreign goods.

Why are Product Requirements problematic?

Different countries have different requirements. Product may need to be altered to comply. Home state products do not have to change. Repackaging and re-production can incur extra cost and would in theory need to be sold at a higher price.

Two categories of MEQRs within the meaning of Article 34 TFEU.

Distinctly applicable measures; or Indistinctly applicable measures.

Commission v. Italy (mopeds) [2009]

Established Market Access Test Facts: An Italian rule which prohibited the use of trailers with mopeds. Had to be attached to a car. Held: Not a product requirement. Didn't say anything about how the trailer was to be produced. It was a 'use restriction' The question was whether this was an MEQR or not. The Court held that it was prima facie an MEQR but that it was justified on the grounds of the protection of road safety.

PreussenElektra, [2001] Facts

F: A German case. Issue was the compatibility with article 34 and german legislation which placed an obligation on German electricity suppliers to purchase all renewable electricity which was produced in the region where the company was operating before looking to sources outside of the country. Not a quantitative restriction. Question was whether it was an MEQR. H:Yes, it was an MEQR. Although it was not a QR it has the same effect. National suppliers had to show a preference for electricity produced in Germany.

Customs Excise v. Schindler Facts

F: Agents of four local state lotteries in Germany. Sent letters from the Netherlands to the UK with application forms with invitations to participate in the German lotteries. Letters confiscated by customs on grounds they infringed national legislation on lottery and gaming. H: Not goods but a service. Enabled purchasers of tickets to participate in game of chance

Article 34 TFEU Definition

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Proportionality and Cassis de Dijon

Reasoned that since alcohol is the most expensive ingredient of alcoholic drinks, the consumer needs to know how much each drink contains in order to be aware why it pays more for certain alcoholic drinks. Even that were true, there is a less-restrictive way to inform the consumer of the alcoholic content of the drinks: simply having a label on the bottle that discloses the alcoholic content.

Is reverse discrimination prohibited by EU law?

Reverse discrimination is not prohibited by EU law. Reverse discrimination is when a member state discriminates against domestic products. Authority: Mathot, [1987]

Static selling arrangements

Rules relating to the hours at which shops may be open, the length of time for which people may work, or the type of premises in which certain goods may be sold.

Indistinctly Applicable Measures

Same burden in law + a) Either Different burden in fact = Indirect discrimination on the ground of origin of the products (= indirect discrimination against imported products [aka de facto discrimination]) b) Or Same burden in fact = Genuinely non-discriminatory measures Measures which affect both home-produced and imported products, but which have a harsher impact on imported products. The measures do not explicitly distinguish between goods according to their origin. Covered in Article 3, Directive 70/50.

THE ARTICLE 36

TFEU DEROGATIONS

PROBLEMS WITH KECK

The Court did not specify which of its previous case-law was overruled ("contrary to what was previously decided") The Court did not provide a clear definition of the term "selling arrangements" - only get guidance from recent Karner case. The distinction between product requirements and certain selling arrangements is not clear (see Familiapress etc) The phrase "selling arrangements" is too narrow in that it cannot be interpreted to include certain rules which are - obviously- harmless to inter-state trade (such as non-discriminatory restrictions on planning and building in the green belt and non-discriminatory restrictions on use The phrase "selling arrangements" is, also, sometimes too broad in that it catches certain "dynamic" measures (such as restrictions on advertising and therefore takes them outside the scope of Article 34 TFEU even though they do affect inter-state trade)

ART 36 and PROPORTIONALITY

The Court has long emphasised that the measures taken by the Member States must not only genuinely serve the purpose for which they are intended but they must also be proportionate to the risk presented by the import, with the burden of proving proportionality resting with the defendant State.

QUANTITATIVE RESTRICTIONS ON IMPORTS (QRS) DEFINITION

"... measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit".

"Goods" authority

Commission v. Italy (Italian Art case), [1968]

Authority for MEQRs

Dassonville, [1974]

Is "The State" interpreted broadly or narrowly under article 34?

the Court of Justice has interpreted the notion of "State" broadly so that not only the central government or the authorities of a Member State are bound by Article 34 TFEU, but also a) Bodies which regulate the conduct of a particular profession (Joined Cases 266 & 267/87, R. v. Royal Pharmaceutical Society of Great Britain, [1989] b) Bodies used as a medium for the execution of a measure which is contrary to Article 34 TFEU Commission v. Ireland ("Buy Irish"),

Advantages of Cassis de Dijon Reasoning

• National regulatory autonomy respected + retention of cultural identity - In Cassis, each MS can still have their own product requirements, but the principle of mutual recognition must still be respected. • Experimentation at national level - b/c each member state can have its own rules and we don't have harmonization at EU level, it means that each member state will try to have the best product requirements to comply with its own culture. • Wider consumer choice - since each member state can have its own product requirements and coupled with mutual recognition, if for example, a consumer prefers a 'chocolate that doesn't contain vegetable fats because that reduces its quality' then b/c of the FMOG in that market you can find more products. • Easier and quicker adaptation to technological change - Up to each MS for Product requirements, at national level the decision as to the level of product requirements, means its easier to change requirements. • No excessive centralisation (No "Euro-products") • Race to the top? Depends on the angle you see. As a consumer, you want the best/cheapeast as a producer, you want to produce them in the cheapest way possible. Maybe a race to the bottom.

Article 34 TFEU is directly effective authority

Ianelli [1977]

MEASURES HAVING EQUIVALENT EFFECT TO QUANTITATIVE RESTRICTIONS (MEQRS) ON IMPORTS - DEFINITION

"All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions".

WHAT ARE "GOODS"?

"By goods ... there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions".

THE ARTICLE 36 TFEU PROVISO

"Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States". If the MS says 'We have this measure because I want to protect the consumer. They must genuinely want to do so. Purpose of this proviso: To ensure that the member state GENUINELY wants to protect the non-economic interest that it says it wants to protect, and not simply to protect its own goods.

Article 26(2) TFEU

"The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties".

Mutual Recognition from 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; the sale of such products may not be subject to a legal prohibition on the marketing of beverages with an alcohol content lower than the limit set by the national rules".

Problems with establishing free trade?

- Protectionism - Trade Barriers - Quantitative Restrictions - Restricts quantity to be imported - Product Requirements - i.e. ingredients used in production - Customs Duties - i.e. tax per bottle when imported - Discriminatory Taxation - Consider subsidization of national industries

Problems with article 34 application pre-Keck

1 )Inconsistency between the various rulings of the Court (leads to uncertainty) 2) Mechanical application of the Dassonville formula (leads to Danger of supranational law encroaching on traditional rules, habits and uses of Member State law) - Court starts by applying Dassonville, and deems it an MEQR. 3) Increased burden on the workload of the ECJ 4) The legitimacy of the ECJ was being eroded by its degree of involvement in judging the reasonableness of any market regulation 5) Abusive use of EC law by traders: See para. 14 of Keck: "In view of the increasing tendency of traders to invoke Article 30 [now Article 34] of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States, the Court considers it necessary to re-examine and clarify its case law on this matter".

Principle of proportionality comprises essentially two tests:

1) A test of suitability - i.e. for achieving the non-economic aim that the MS claims that the measure seeks to achieve. 2) A test of necessity - One important part of the "necessity" limb is the question whether there are any other less restrictive means of producing the same result (the most usual example are cases involving a reliance on consumer protection where the Court says that a less restrictive alternative will be labelling. i.e. instead of total ban on pornographic material, perhaps a rule stating such materials can only be bought in sex shops.

Stages of Economic Integration

1) Free Trade Area 2) Customs Union 3) Internal Market 4) Monetary Union 5) Economic Union 6) Political Union 7) Full Union

THE MANDATORY REQUIREMENTS

1) Judge-made 2) The mandatory requirements "list" is NOT EXHAUSTIVE As a general rule, mandatory requirements apply only to indistinctly applicable measures. They cannot be used to justify a 3)QR or a distinctly applicable MEQR. 4) Mandatory requirements + harmonisation? 5) Burden of proof? On the member states. 6) In order to be justified, the national policies must not pursue aims of a purely economic nature.

The Two Cassis Principles

1) Mutual recognition and 2) Rule of reason/Mandatory requirements

Examples of Indistinctly Applicable Measures

1) Product Requirements 2) Origin Marketing 3) National Quality Standard 4)

Why has the creation of an internal market in the EU been considered so important?

1. Economic reasons (i.e. benefits of free trade) 2. Non-economic (broader) reasons: 2.1 Involvement of the Union in matters of broader social concern (spill-over effect): If a MS imposes a product requirement, the aim of this requirement may be (for example) to protect the environment, this needs to be evaluated in a second stage under s.34 TFEU. 2.2 Peace in Europe

Three main arguments of starting European integration

1. peace 2. prosperity (by allowing goods to flow freely, abolishing any trade barriers - allows economies of scale and synergies, much more efficient/effective) 3. power (by cooperating with others, the interest opinions of the UK can make a difference)

How can free trade problems be solved?

Agreement for removal of trade barriers Mutual recognition - If goods have been lawfully produced in a country in the FTA, they must be allowed to be imported into the country as they are. Each state in the agreement is free to have its own requirements, provided that when it comes to goods coming from outside territory, which have complied with their own requirements, they are accepted.

Before Keck, what was the problem with the interpretation of Article 34?

All Member State measures (i.e. even those which were equal burden rules and thus were genuinely nondiscriminatory) fell within the scope of Article 34 TFEU.

Market Access Test

Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept". (emphasis added)

Equal Burden

Apply to all goods (domestic and imported); they regulate trade in some manner, but do not have a protectionist effect. Impact equal between sale of domestic and imported products.

Example: Import License. Is this caught under Article 34?

Applying Dassonville we find that such a measure is capable of 'hindering, directly or indirectly, actually or potentially, community trade' Consider: must apply for a licence before goods are imported. Impact: a) until licence approved goods are effectively banned (cannot be imported) b) application could be rejected c) very act of applying constitutes an additional step.

Internal Market - Treaty Article?

Article 26(2) TFEU

Why is a product requirement indistinctly discriminatory?

Because it is a dual burden rule. When a product is produced in one member state it has to comply with the requirements of its home state. If the host state insists that the imported products comply with product requirements of that member state, it means that goods lawfully produced in one member state (that have lawfully complied with the product requirements of that member state) have to comply also with the product requirements of another state. It puts a dual burden on the exporter.

Apple and Pear Council v Lewis (Case 222/82)

F: Council funded by a levy on apple and pear growers in England and Wales was created to promote the consumption of English and Welsh varieties. Some growers refused to pay, claiming that the scheme infringed Art.34. The ECJ (under Art.267) held that it was permissible to promote a product by reference to its qualities, even where those qualities are typical of national production.

Dassonville Facts

F: Dassonville tried to import scotch whiskey from France into Belgium without certificates of origin, contrary to Belgian law. Dassonville claimed that the Belgian requirement contravened art. 34. A reference to the ECJ was made under art. 267. H: Movement of the goods was impeded.

dynamic selling arrangements: De Agostini

Facts: A Swedish ban which prohibited TV advertising directed at children under 12. De Agostini produced magazines which had model toys in each volume. They wanted to advertise on television. De Agostini violated the law. Question was whether the ban contrary to Article 34? Was it an MEQR Held: This is an advertising restriction, a total ban on advertising directed at children under 12. Therefore it is a selling arrangement. So, court must apply Keck. Court applied two conditions: (1) Ban applies to all traders operating in the Swedish market. Satisfied (2)(1) "In Law" - It is satisfied, when you read the law it says nobody can advertise on TV. (2)(2) "In Fact" - Likely that this will affect the marketing of goods more than the marketing of domestic goods. There will be discrimination against imported goods. So it IS an MEQR

Market Access: Aklagaren v. Mickelsson and Roos

Facts: A Swedish rule which banned the use of jet skis in waters other than general navigable waters or waters designated by the government. Restriction on use. Was this an MEQR. Held: Applied Market Access test. Prima facie this was an MEQR but found to be justified on the grounds of public health/environmental protection.

Mathot, [1987] Facts

Facts: Belgian law required batter produced in Belgium to contain certain details (i.e. producer address) on packaging. This requirement made it more difficult to sell. Reverse discrimination issue. Belgian law clearly discriminated against belgian batter, but was it contrary to article 34? Preliminary reference under 267 made. Held: No. This form of discrimination is not prohibited by article 34. The aim of Article 34 is to enable the free movement of goods between Member States. Discrimination against imported goods, that is distinctly applicable measures, is clearly contrary to article 34. However, reverse discrimination doesn't include the achievement of that aim because it is just domestic goods that are treated worse than imported goods. Since imported goods are treated better than domestic goods, reverse discrimination may further the aim of article 34.

National Quality Standard Case: Commission v Ireland

Facts: Commission brought a case under 258 claiming violation of 34 TFEU. Water supply contract commissioned by local authority in Ireland. Specification that water pipes had to be certified as compliant with irish standard. One manufacturer (irish) made such pipes. Held: Indistinctly Applicable Measure. Could have easily asked for pipes equivalent to Irish standards.

Equal-burden rules: Oebel

Facts: Concerned a German law which prohibited night work in the bakery industry. There couldn't be any transport/delibery before 5:45am. Clearly a selling arrangement. Court said this is not an MEQR. Germany doesn't have to justify it. It's a neutral rule and doesn't affect imports worse.

Cassis De Dijon Case 1978 Facts:

Facts: German law said that 'all alcoholic drinks sold in the german market had to have an alcohol content of more than 25% (product requirement. Indistinctly applicable measure). German authorities refused to allow 'Cassis,' a french fruit liquor, because it only contained between 15-20% alcohol. While the measure was not discriminatory, it clearly excluded French cassis from the German market. The importer challenged the decision in national court on the basis that the rule infringed Article 34 TFEU. A reference under 267 was made. Issue: Did this amount to an MEQR? Obviously an Indistinctly Applicable Measure because all products in the German market had to comply. Held: It was an MEQR and it wasn't justified.

Keck 1993 Facts

Facts: Keck and Mithouard, two supermarkets, had resold goods at a loss contrary to French law. They claimed that the prohibition restricted the volume of total sales of goods, including imported goods and so infringed Article 34. A reference was made to the ECJ under Article 267. Note: Not a product requirement. So we must consider a selling arrangement and the methods used for promotion. Was this method of promotion an MEQR. Held: No. The prohibition of sale at a loss was not an MEQR. This means that France didn't have to justify its law. It only restricted trading, not importation of goods from other Member States. No cross-border specificity. Equal burden rule.

Selling Arrangements: Torfaen

Facts: Selling arrangement. Sunday Trading laws. UK rule that prohibited shops from being open on sundays. B&Q claimed the best day for them to sell their goods is on Sunday. They breached the law and opened shops on Sundays. The issue was whether the rules were MEQRs? Held: Not product requirement. It is an equal-burden rule. Any impact it would have on the sale of goods would be felt by both imported and domestic goods. Courts held it was an MEQR. UK proved the measure was justified and could continue to apply its law. What is interesting/ problematic was that although there was no cross-border specificity, the courts felt it necessary to examine these measures. Essentially means it gives the ECJ the power to second guess the powers of the member states.

Article 36 and Henn and Darby

Facts: The United Kingdom seized pornographic goods imported from the Netherlands. The importers were prosecuted and an art. 267 reference was made to the ECJ by the House of Lords. Held: A total ban is a quantitative restriction under art. 34. However, the measure was in fact found to be justified under art. 36 Reason: To protect public morality. Which is included in the Article 36 list. Next questions: (1) Whether this was proportionate. Found 'yes' (2) Whether it constituted a means of arbitrary discrimination or a disguised restriction on trade between Member States. Did they REALLY want to impede imports? ECJ considered the situation in the UK and found that although there was a total ban on imports, there wasn't a total ban on the marketing of pornographic materials in the UK, but there wasn't lawful trade of such materials in the UK. This proved that the UK indeed wanted to restrict the use of pornographic materials. Not a disguised restriction on trade.

Equal-burden rules: Quietlynn

Facts: UK law which prohibited the sale of sex articles in places that weren't licensed sex shops. No cross-border specificity. No hidden discrimination against imported goods. Doesn't impede importation of goods. UK doesn't have to justify.

Origin Marketing Case: Commission v UK (1983)

Facts: UK legislation requiring certain retail goods to be marked with their country of origin. Commission proceeded under 258 claiming violation of 34 TFEU. Held: The purpose of indications of origin/origin marking is to enable consumers to distinguish between domestic and imported products and this enables them to assert any prejudices which they may have against foreign products.

Selling Arrangement: Cinetheque

Facts:French rule banning the sale or hiring of films within one year from the time it was released in cinemas. The aim was to get people to the cinema, one of the public policy aims of the French government at the time. The issue was whether this was an MEQR? Held: The argument was 'if videos cannot be sold within the first three months of the release, this means that apart from French films, imported videos will be affected as well.' this amounts to an impediment to the free movement of goods. However, such rules was not a dual-burden rule, the impact that it had on the sale of videos was exactly the same for both imported and domestic films. There was no cross-border specificity. Since there is an equal-burden, and a non-discriminatory rule that limits the freedom of people who produce videos then this will not be contrary to Article 34. It doesn't affect in any way domestic form imported goods. It just regulates the sale of goods which is not necessarily a bad thing. What we DON'T want is a market where the free movement of goods is impeded.

Article 36 and Conegate, [1986]

Facts:Involved the importation into the UK of inflatable dolls from Germany. At first it was thought these were simply for window displays. Customs however questioned their name ("Love Dolls"). UK prohibited the importation of such dolls but not the production and marketing. Question: whether this was an MEQR or a QR? Held: It was a QR/MEQR, but the question was whether it was justified. UK tried to rely on public morality. Must now consider: (1) Whether this was proportionate. Found 'yes' (2) Whether it constituted a means of arbitrary discrimination or a disguised restriction on trade between Member States. Court found that it was. When it compared the treatment of domestic dolls with imported dolls, the court found there was lawful trade in sex dolls in the UK (they could be freely produced and marketed) the problem was strictly with imports. Showed the UK was not concerned with protecting public morality, rather to protect its domestic product. Disguised restriction on trade.

Authority for QRs

Geddo v. Ente Nazionale Risi, [1973]

WHICH GOODS CAN BENEFIT FROM FREE MOVEMENT BETWEEN MEMBER STATES UNDER EU LAW?

Goods which: a) Originate within the EU; OR b) Originate in a country outside the EU, BUT are in free circulation within the EU

Article 36 TFEU - Grounds

Grounds of: 1) public morality 2) public policy or public security 3) the protection of health and life of humans 4) animals or plants 5) the protection of national treasures possessing artistic, historic or archaeological value 6) the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

Dynamic selling arrangement: Leclerc-Siplec, [1995]

Held to be a dynamic selling arrangement.

Mutual recognition

If goods have been lawfully produced in a country in the FTA, they must be allowed to be imported into the country as they are. Each state in the agreement is free to have its own requirements, provided that when it comes to goods coming from outside territory, which have complied with their own requirements, they are accepted.

What if individuals have been disrupting the application of Article 34 TFEU?

In such cases, the Court rules that the failure of a Member State to act in a way which will stop individuals impeding the free movement of goods amounts to a violation of Article 34 TFEU read together with Article 4(3) TEU. Authority: Commission v. France (Strawberries) F: The French government was found liable under article 34 for not taking adequate measures against French farmers who had for many years violently sabotaged imports of spanish strawberries

Non-static or dynamic selling arrangements

Include the ways in which a manufacturer chooses to market this specific product. through a certain form of advertising, free offers, and the like. A hybrid between a product requirement and static selling arrangement.

Measures regulating selling arrangements

Keck 1. You see you have a rule regarding 'opening shops on sundays' 2. Say "I have to check whether this is an MEQR" 3. Write down Dassonville definition. 4. Conclude this is a rule which concerns the regulation of a selling arrangement 5. We know this from cases... 6. Because it is a selling arrangement, we must apply the Keck formula to decide whether this is an MEQR or not 7. Consider whether the two Keck conditions are satisfied 8. If they are, conclude it is not an MEQR 9. If it is (one or both Keck conditions not satisfied) then you conclude the measure is an MEQR 10.Consider whether it is justified.

What are product requirements?

Law which says 'in order for product to be marketed in domestic environment, it must comply with these requirements' i.e. packaging, shape, size, weight, etc

Workflow for Product Requirements

Measures imposing product requirements (Cassis applies) 2) Dual-burden rules 3) Applies the principle of mutual recognition 4) Concludes that they are MEQRs 5) Considers whether the measures are justified

WHAT IS A SELLING ARRANGEMENT?

No definition provided by the ECJ. but: "Provisions concerning inter alia the place and times of sale of certain products and advertising of those products as well as certain marketing methods are provisions governing selling arrangements within the meaning of Keck and Mithouard". Authority: Karner, [2004]

Should market circumstances rules (which are mostly equal-burden rules) be included within the scope of article 34 TFEU?

No. Authority: Keck

Is a discriminatory intent required to establish an MEQR?

No. From the ECJ's definition of an MEQR, the crucial element in proving the existence of an MEQR is its effect. A discriminatory intent is not required. This is a very broad definition which indicates a determination by the ECJ to ensure there will be few measures permitted to hinder free movement of goods.

Is Article 34 both horizontally and vertically directly effective?

No. Only vertically. Authority? Vlaamse, [1987]

Rule of reason/Mandatory requirements

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 may be recognised as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer".

Keck Formula

Product requirements we continue using Mutual recognition it's Cassis. Dual-burden rules are prima facie MEQRs and it's up to the Member States to justify. The courts then created the concept of selling arrangements (Cinetheque, Torfaen) anything to do with how you sell your goods. Court said these rules are not MEQRs and presumed to fall outside the scope of article 34 provided two conditions are satisfied: 1) Those provisions apply to all traders in the national market and 2) Provided that the selling arrangement affect in the same manner (1) in law and; (2) in fact the marketing of domestic and imported goods.

Total restraint and R v Henn and Darby

The United Kingdom seized pornographic goods imported from the Netherlands. The importers were prosecuted and an art. 267 reference was made to the ECJ by the House of Lords. A total ban is a quantitative restriction under art. 34.

Dual Burden

The domestic producer will already comply with domestic law and will not be further disadvantaged. Foreign producer needs to change method of production to comply with laws of importing Member State. Inhibits trade.

What did Van Gend en Loos Establish?

The principle of Direct Effect

Article 36 TFEU

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

What is the purpose of Article 34 TFEU? Is Article 34 TFEU intended to liberalise inter-state trade? OR Is Article 34 TFEU intended to encourage the unhindered pursuit of commerce in the individual Member States?

To answer the question, the ECJ held in Keck that the purpose of Article 34 was to enable the free movement of goods (1st point). If it doesn't have a negative impact on imported goods then it shouldn't be caught by article 34.

Van Gend en Loos facts

Van Gend en Loos, a firm of importers, was required to pay customs duty on urea-formaldehyde (glue) imported from Germany into the Netherlands under a law adopted after the creation of the EEC (now EU). The importers challenged the payment in the Dutch courts on the basis that the extra duty infringed Article 30 TFEU (prohibiting the introduction of new customs duties). The Dutch court referred questions to the Court of Justice (ECJ) for interpretation under Art.267 procedure.

Cross-border specificity

When imported goods are affected more than domestic goods.

What is free trade?

When the governments have agreed to allow goods or factors of production to move freely between each other. Government cannot impose any obstacles.

Can statements made by a government official violate article 34?

Yes. Authority: AGM-COS.MET, [2007] F: AGM manufactures/sells vehicle lifts. The Finnish authorities issued a report that found deficiencies in these lifts. In the absence of sufficient evidence, their use was not restricted or prohibited. In an interview, an official of Finland stated that the lifts could be dangerous. AGM claimed that this led to a fall in its turnover in Finland and elsewhere in Europe. AGM applied to the Tampere District Court, seeking compensation from the Finnish State and the official in question for the damage caused to its business and this Court referred a number of questions to the Court of Justice on interpretation of the rules on the free movement of goods and on the conditions of liability for infringement of Community law. H: The court considered whether the opinions expressed by an official of a Member State can be attributed to the Member State itself. The Court found that this is the case for statements made by an official if their form and circumstances give the persons to whom they are addressed the impression that they are official pronouncements of the State, made by the official with the authority of his office, and not personal opinions of the official.

Can QRs be justified?

Yes. Only by using the treaty derogations listed in art. 36 TFEU.

Can Indistinctly Applicable Measures be justified?

Yes. They can be justified under BOTH the Article 36 TFEU derogations AND the mandatory requirements

Article 34 TFEU two prohibitions?

a) Quantitative restrictions on imports (QRs) b) Measures having equivalent effect to quantitative restrictions on imports (MEQRs)