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Free Movement of Goods Rules

Free Movement of Goods Rules. What is the problem and what are the rules?. Structure of today’s Lecture. What type of measures obstruct trade between Member States in the EU? What are the relevant Treaty provisions? What is the meaning of ‘measures having equivalent effect?.

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Free Movement of Goods Rules

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  1. Free Movement of Goods Rules What is the problem and what are the rules? R.Greaves

  2. Structure of today’s Lecture What type of measures obstruct trade between Member States in the EU? What are the relevant Treaty provisions? What is the meaning of ‘measures having equivalent effect?

  3. Types of Measures • Import bans • Customs duties • Trading and marketing rules • Buy national campaigns • Inspections • Price regulation • Standards • Origin markings • Consumer preferences • Language • Intellectual Property Rights • Transport R.Greaves

  4. EU’s approach to eliminating barriers to trade Negative integration: prohibiting unjustified national rules acting as a hindrance to free trade Mutual recognition principle: products sold legally in one MS can circulate freely throughout the EU (Cassis de Dijon case) Positive harmonisation: harmonising divergent national standards through legislation R.Greaves

  5. The Treaty Provisions Articles 34 and 35 TFEU: Tool for policing the border between legitimate and illegitimate national regulation Article 36 TFEU: Derogations R.Greaves

  6. Quantitative Restrictions Art 34 TFEU “Quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States.” R.Greaves

  7. Scope • What are goods? • Measures taken by Member States • Quantitative restriction • Measures having equivalent effect R.Greaves

  8. What are goods? • Any physical object that can be valued in money and which can be the subject of commercial transactions R.Greaves

  9. ‘Measures taken by Member States’ • What is a State entity? • May include any public or semi-public body • Apple and Pear Development (222/82) • Buy Irish (249/81) R.Greaves

  10. State Measures • Commission v Ireland Case 249/81 [1982] (need not be binding) • Rau Case 261/81 [1982] • Apple & Pear development Council v Lewis case 222/82 [1983] • R v Royal Pharmaceutical Society Case 266/87 [1989] • Commission v France C-265/95 [1997] R.Greaves

  11. What is a QR? • Geddo Case 2/73 [1973] • Risi [1973] any measures which amount to the total or partial restraint on imports, exports or goods in transit. • Henn & Derby Case 34/79 [1979] • Egs: bans; quota systems; import/export licences R.Greaves

  12. What is a measure having equivalent effect? • Directive 70/50 • 3 groups • Distinctly applicable (discriminatory and applies solely to imported goods) • Indistinctly applicable (dual burden) • Indistinctly applicable (equal burden) R.Greaves

  13. First Phase (MEQR) • Dassonville Case 8/74 “ 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 equivalent effect to quantitative restrictions.” R.Greaves

  14. Phase II Cassis de Dijon 120/78 [1979] R.Greaves

  15. The essence of Cassis • Principle of mutual recognition • Rule of reason (justified if they are necessary to satisfy “mandatory requirements” • proportionality R.Greaves

  16. Mandatory requirements • Protection of public health • Effectiveness of fiscal supervision • Fairness of commercial transactions • Defence of the consumer R.Greaves

  17. Post Cassis examples of ‘mandatory requirements’ • Protection of the environment • Cultural protection • Fundamental rights • Working conditions R.Greaves

  18. Directive 98/34 and relevant case law • I – Aim of Directive • II - Articles 8 and 9 of Directive • III – The case law

  19. I – Aim of Directive • On the provision of information in the field of technical standards and regulations • Consolidated an earlier directive (Directive 83/189) • To avoid creation of further barriers to trade • Detailed procedure for a regulated dialogue

  20. II – Articles 8 and 9 of Directive Article 8 Requires MSs to notify to the Commission any draft technical regulation BEFORE they are adopted and create barriers to trade between MSs Article 9 Standstill clause ie notifying MS to postpone the adoption of the draft technical regulation for 3 months

  21. III - Relevant CJEU case law CIA Security C-194/94 [1996] ECR I-2201 Unilever C- 443/98 [2000] ECR I-7535 Sapod-Audic C-159/00 [2002] ECR I-5031

  22. Directive 94/38 – technical standards • CIA C-194/94 [1996] ECR I-2201 • Unilever C-443/98 [2000] ECR I-7535 • Sapod-Audic C-159/00 [2002] ECR I-5031 • Arts 8 and 9

  23. Next topic Post-Cassis developments & the Keck & Mithouard CJEU ruling R.Greaves

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