4 Introduction to the Substantive Law of the EU4.1 Overview – The Four Freedoms • Free movement of goods • Free movement of persons – free movement of workers – freedom of establishment • Free movement of services, i.e. freedom to provide and receive services • Free movement of capital Cornerstone of all four freedoms is the principle of non-discrimination

4 Introduction to the Substantive Law of the EU4.2 Free Movement of Goods – Background • Core of the EU´s single trading block • Essential to the creating and running of the customs union and the common market • Aimed at member states´ attempts to protect their own national producers and industries • Free circulation of goods without customs, duties, charges or other financial or non-financial restrictions • Member states have almost no control over export and import matters and related policy areas  EU solely responsible

4 Introduction to the Substantive Law of the EU4.3 Restrictions under Art 34, 35 TFEU • Non-fiscal barriers can range from quotas to national measures prescribing the content and presentation of a product • Relevant provisions: • Art 34 TFEU on imports • Art 35 TFEU on exports • Art 36 TFEU contains derogations from Artt 34, 35 TFEU • Art 34 TFEU prohibits two types of measures • QRs • MEEs – case law determines scope of application (Dassonville, Cassis de Dijon, Keck)

4 Introduction to the Substantive Law of the EU4.4 Restrictions under Art 34, 35 TFEU - QRs • Definition: “measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit” • Examples for a breach of Art 34 TFEU ( Art 11 GATT): • Quota limiting the quantity of goods coming into a state • Ban on imports (‘zero quota’) • Example: National Farmers´ Union Case • In principle, member states can justify a breach of Art 34 TFEU only by reference to one of the Art 36 TFEU derogations (Art 20 GATT)

4 Introduction to the Substantive Law of the EU4.5 Restrictions under Art 34, 35 TFEU – MEEs • Any member state´s measure: • discriminatory rules and • non-discriminatory rules • Actions of private companies and individuals not covered • MEEs not covered by GATT

4 Introduction to the Substantive Law of the EU4.6 Precedents on MEEs: The Dassonville Case • Starting point when assessing whether a measure is an MEE is the so called Dassonville-formula • Facts: Criminal proceedings in Belgium were brought against a trader who acquired a consignment of Scotch whisky in free circulation in France, and imported it into Belgium without being in possession of a certificate of origin from the UK customs authorities. This was in vio-lation of the Belgian customs requirements, the UK at the time not being part of the customs union. Dassonville prepared his own certifi-cate of origin and was prosecuted for forgery. • “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” ( Intention irrelevant)

4 Introduction to the Substantive Law of the EU4.7 Precedents on MEEs: The Keck and Mithouard Case • Facts: France prohibits the sale of goods at a loss. • “Contrary to what has previously been decided, the application to products from other member states of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between member states within the meaning of the Dassonville judgment provided that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other member states.” • In principle, non-discriminatory and non-product-related measures do not come under Art 34 TFEU

4 Introduction to the Substantive Law of the EU4.8 Precedents on MEEs: The Cassis de Dijon Case • Facts: Germany prohibited the marketing of spirits with less than a 25 per cent alcohol content which included Crème de Cassis de Dijon containing only 15-20 per cent alcohol. The ban applied to all low alcohol liqueurs regardless of origin and did not distinguish between national and foreign beverages (= effective indirect ban of French imports) • “There is (…) 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 (…)”

4 Introduction to the Substantive Law of the EU4.9 Derogations under Art 36 TFEU • Artt 34, 35 TFEU are subject to the exhaustive list of derogations found in Art 36 TFEU • Member states tend to invoke Art 36 TFEU in order to keep goods out of their country • Court of Justice has adopted a narrow interpretation of the express derogations listed in Art 36 TFEU • Even if the CJ recognises a member states´ public interest within the meaning of Art 36 TFEU, it requires the measure to be proportionate • Successful invocation of one of the derogations creates a barrier to inter-state trade which can be eliminated through community-wide harmonisation ( case National Farmers´ Union)

4 Introduction to the Substantive Law of the EU4.10 Commission v. Italian Republic 1. Why did the Italian government require “chocolate substitute” on the labels? 2. Was the Italian government justified in its requirement?

4 Introduction to the Substantive Law of the EU4.11 TFEU and the GATT • GATT 1947, and now the WTO, have played a significant role in shaping the key trade provisions of the EC Treaty (now: TFEU) • Artt 3, 11 GATT are reflected in Art 110, 34, 35 TFEU • Wording of Art 36 TFEU derogations almost verbatim Art 20 GATT general exceptions • Customs union is a derogation from the MFN clause exception in Art 24 (4) seq. GATT • In 1957 the EC assumed the powers previously exercised by the member states vis-à-vis the WTO (now: EU) • Art 6, 19 GATT influenced the community´s rules on dumping, subsidies, and safeguards

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