1. EU Member States suffer from high levels of binge drinking. This is particularly true of the
UK. To address this public health problem, the UK has enacted the (fictitious) Anti- Binging Act
(‘the Act’) with a view to reversing the current trends:
a) Section 2 of the Act requires that all alcoholic beverages be clearly labelled with standardised
health warnings indicating that the excessive consumption of alcoholic beverages causes liver
cirrhosis and that alcoholic beverages should not be consumed during pregnancy.
b) Section 3 bans the sponsorship of all sports events by manufacturers of alcoholic beverages.
c) Section 4 increases the level of taxes payable on all alcoholic beverages by 20%. The
Government has made clear that it will use the taxes thus raised to finance its fight against
alcohol abuse.
The Food and Drink Federation (‘the FDF’) which represents the interests of food and drink
manufacturers in the UK is particularly worried about the impact that the Act will have on the
competitiveness of its members. It seeks your advice as to the Act’s compatibility with European
Union law.
Introduction
The UK’s ‘Anti-Binging Bill’ is a piece of domestic legislation which gives rise to issues over both
fiscal and non-fiscal restrictions potentially hindering the free movement of goods. The European
Commission’s directive proposal raises issues pertaining to non-fiscal restrictions on goods. This
answer will assess the legitimacy of these measures by taking each measure in turn. The court in Arts
Treasures defined goods as ‘“products which can be valued in money and which are capable, as such,
of forming the subject of commercial transactions”. Alcohol falls within this definition of goods and
has already been the focus of the courts case law (Cassis de Dijon; Beer Purity; Gourmet
International).
Section A
Section A is a non-fiscal measure that may be incompatible with Article 34 TFEU. Article 34
prohibits quantitive restrictions (QRs) and all measures having an equivalent effect to a quantitive
restriction (MEEQRs). The scope of MEEQRs was outlined in Dassonville as any rule ‘capable of
hindering, directly or indirectly, actually or potentially, intra-Community trade’. Louis Head critiques
this formula, contending that it is ‘so wide’ that it has caught measures concerning market
circumstances which were neither discriminatory nor a form of protectionism. Cassis de Dijon was
the first case in which the COJ laid down the rule that both distinctly and indistinctly applicable
measures could fall within the scope of Article 34. Further, Cassis introduced the principle of mutual
recognition whereby goods that have been regulated according to the law of one member state must be
allowed into other member states without being subjected to the burden of having to comply with 28
different sets of rules. Section A of the bill would not be a distinctly applicable measure as it is not
discriminatory in law, as it does not target imported goods exclusively. Indistinctly applicable
measures apply to both imports and domestic products but will fall within the scope of Art 34 if their
impact is burdensome on imported goods. Section A would be burdensome on imported goods, as
they would incur expenses in packaging their goods differently for the UK than other member states.
Keck drew a distinction between certain selling arrangements and product requirements. This would
be a product requirement since it concerns how the product itself is packaged (Cassis), through
requiring specific labelling and warnings on alcohol. Product requirements automatically are caught
UK. To address this public health problem, the UK has enacted the (fictitious) Anti- Binging Act
(‘the Act’) with a view to reversing the current trends:
a) Section 2 of the Act requires that all alcoholic beverages be clearly labelled with standardised
health warnings indicating that the excessive consumption of alcoholic beverages causes liver
cirrhosis and that alcoholic beverages should not be consumed during pregnancy.
b) Section 3 bans the sponsorship of all sports events by manufacturers of alcoholic beverages.
c) Section 4 increases the level of taxes payable on all alcoholic beverages by 20%. The
Government has made clear that it will use the taxes thus raised to finance its fight against
alcohol abuse.
The Food and Drink Federation (‘the FDF’) which represents the interests of food and drink
manufacturers in the UK is particularly worried about the impact that the Act will have on the
competitiveness of its members. It seeks your advice as to the Act’s compatibility with European
Union law.
Introduction
The UK’s ‘Anti-Binging Bill’ is a piece of domestic legislation which gives rise to issues over both
fiscal and non-fiscal restrictions potentially hindering the free movement of goods. The European
Commission’s directive proposal raises issues pertaining to non-fiscal restrictions on goods. This
answer will assess the legitimacy of these measures by taking each measure in turn. The court in Arts
Treasures defined goods as ‘“products which can be valued in money and which are capable, as such,
of forming the subject of commercial transactions”. Alcohol falls within this definition of goods and
has already been the focus of the courts case law (Cassis de Dijon; Beer Purity; Gourmet
International).
Section A
Section A is a non-fiscal measure that may be incompatible with Article 34 TFEU. Article 34
prohibits quantitive restrictions (QRs) and all measures having an equivalent effect to a quantitive
restriction (MEEQRs). The scope of MEEQRs was outlined in Dassonville as any rule ‘capable of
hindering, directly or indirectly, actually or potentially, intra-Community trade’. Louis Head critiques
this formula, contending that it is ‘so wide’ that it has caught measures concerning market
circumstances which were neither discriminatory nor a form of protectionism. Cassis de Dijon was
the first case in which the COJ laid down the rule that both distinctly and indistinctly applicable
measures could fall within the scope of Article 34. Further, Cassis introduced the principle of mutual
recognition whereby goods that have been regulated according to the law of one member state must be
allowed into other member states without being subjected to the burden of having to comply with 28
different sets of rules. Section A of the bill would not be a distinctly applicable measure as it is not
discriminatory in law, as it does not target imported goods exclusively. Indistinctly applicable
measures apply to both imports and domestic products but will fall within the scope of Art 34 if their
impact is burdensome on imported goods. Section A would be burdensome on imported goods, as
they would incur expenses in packaging their goods differently for the UK than other member states.
Keck drew a distinction between certain selling arrangements and product requirements. This would
be a product requirement since it concerns how the product itself is packaged (Cassis), through
requiring specific labelling and warnings on alcohol. Product requirements automatically are caught
