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Summary Tutorial 2 - Free movement of goods: quantative restrictions
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Tutorial European Union Law: Substantive 2016
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Tutorial 2 - Free movement of goods: quantative restrictionsCase 1
First issue
Horizontal applicability not so clear, Frabo-case is applicable here. The private company
controls the entry in the market and that is where the whole problem begins. They act like an
agent to the government (because it is instructed by the government) regulating the market.
Then, definition of MEE from Dassonville. Also use Cassis de Dijon for indistinctly/distinctly
applicable rules and check whether it is a certain selling arrangement from Keck. (three
conditions?). Then check the rule of reason of Cassis. It is not clear whether environmental
issues come under article 36 or the rule of reason. As under article 36 you have the
protection of human health, plants. Justify minimally if you say that there is no justification on
these grounds. You didn’t have to argue case law (of Buy Irish) as you didn’t have to go that
far, but it is correct. Is a justification under public policy possible? You can be creative about
it, although it was probably the environment in this case. Next, you have to check
proportionality, which it was not.
Second issue
Principle of mutual recognition and breach of article 34. It doesn’t look like a certain selling
arrangement so nevermind this one. You had to use a case. You could argue that there is a
justifcation under public health, environment or consumer protection. Then you should have
checked whether it is proportionate and argue why it is Capoda. Case Commission v Ireland
can be used and you could have also used Commission v Italy (trailers) measure hindering
access to the market. You can buy the product but not use it, which is the case here. You
either should have used Capoda case or Commission v Italy.
Third issue
Same case as the Juvelta case, saying there could be a justification on consumer protection
but it is not. Certain selling arrangement is not because it says something about the product
itself and not about how you sell it. The court does not distinguish but it is somethign that is
put on the product itself, on the other hand it relates to conditions that is put on how the
product is sold. In Juvelta the court didn’t even go into the Keck criteria, Keck will be more
forgotten and this is a clear example of it. MEE: yes, justification, also ALWAYS check
proportionality. Grounds of justification is not as important as the proportionality because a
ground of justification is rather easy to find. Then we use the Italian trailers case because it
is a question on the use of the product. Then you see if its distinctly or indistinctly, then
Dassonville criteria must be checked which they are.
Fourth issue
Certain selling arrangement, looks like it but it is not as the second condition is not fulfilled so
it is a MEE. Use infant milk case being sold in pharmacies this was fine. Then Ker Optika
case, breach of article 34. Possible justifications on public health.
Case 2
This was an exam question and it was given like this so you have to come up with the issue
yourself and then solve it.
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