Art 34
The situation in question is to be seen in light of EU law regarding free
movement of goods. Here, Art 34 of the TFEU is applicable because of the
involvement of quantitative restrictions. Art 34 sates that ‘quantitative
restrictions on imports and all measures having equivalent effect shall be
prohibited between Member States’. Art 35 relates to exports, while Art 36
provides certain exceptions.
There are restrictions in question, quantitative and measures having
equivalent effect (MEQRs). Quantitative restrictions were defined in Geddo
case as: ‘measures which amount to a total or partial restraint of, according to
the circumstances, imports, exports or goods in transit’. An example is a ban
on imports, which was recognized as the worst form of restriction in Henn and
Darby.
In comparison, MEQRs are difficult to define. Directive 70/50 is no longer
operational. Art 2 provides a list of things that can constitute MEQRs, of which
this is relevant for our purpose:
• Minimum or maximum prices for imported products;
• Less favourable prices for imported products;
• Lowering the value of the imported product by reducing its intrinsic value or
increasing its costs;
• Payment conditions for imported products which differ from those for
domestic products;
• Conditions in respect of packaging;
• Composition;
• Identification;
• Size;
• Weight etc.
Dassonville (para 5) defined MEQRs as: ‘All trading rules enacted by the
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’.
Distinctively/indistinctively
Once the above is established, it must be considered which type of
discrimination has occurred. This depends on whether the measure is distinctly
applicable (discriminates) and indistinctly applicable measures (does not
discriminate).
,Distinctly applicable measures are divided into two categories, ones that
directly discriminate and ones that indirectly discriminate. When
discrimination is based on nationality, direct discrimination is involved.
Whereas, indirect discrimination is same in law but different in fact. In Buy
Irish Campaign, consumers were encouraged to buy Irish products, based on
their nationality (Art 34 infringed due to direct discrimination). In Evans
Medical and Macfarlane Smith, the requirement of licensing of impots was
held to breach Art 34 (indirect discrimination).
Indistinctively applicable measures include barriers to trade that do not
discriminate. These were brought within the scope of Art 34 by Cassis de Dijon.
They can be grouped under 4 situations that arise commonly:
1. Origin-marking requirements: they breach Art 34 for 2 reasons: for
imposing an extra burden on importers, and, the consumer may
consciously or sub consciously choose domestic product rather than
imported ones. An example of this is Commission v UK.
2. Packaging requirements breach Art 34, as happened in cases of: Walter
Rau, Mars, Estee Lauder case (consumer protection measure that
prevented ‘clinique’ from labelling their product ‘clinique’).
3. Name restrictions, whereby a member state cannot reserve generic
name, for products manufactured out of a specific raw component or
only contain a specific proportion of the raw ingredients: Deserbais,
Commission v Italy/Commission v Spain.
4. Contents, ingredients and process restrictions can be problematic
because of difficulty in remedying them. Mutual recognition principle
was provided by Cassis de Dijon. Other cases in this area include Gilli and
Anders, Bellamy (Belgium legislation dictated that there can be no sale
of bread with more than 2% salt content), Greenham and Abel (food and
drinks’ sale prohibited for having particular chemical).
It should be noted that Art 34 applies only to measures taken by the state—
Sapod Audic case.
Once indistinctly applicable measures were added into the ambit of Art 34, it
posed problems for member states due its widening. Hence, indistinctly
applicable measures are now divided into product requirements (dual burden
rules) and selling arrangements (equal burden rules). Cassis itself concerned
with the later. In Keck, a distinction was made between the two, where the
selling arrangements was a novel introduction and will not fall within Art 34.
,What selling arrangements do is that they do not require any change in the
product but rather a restriction on the way it is marketed. A few examples
include: opening hours—Punto Casa, restrictions on the way baby milk powder
can be sold—Commission v Greece.
For a selling arrangement to not fall within Art 34, 2 conditions need
satisfaction:
1. Must be applicable to all relevant traders operational within national
territory;
2. must also affect in the same manner, in law and fact, the marketing of
domestic and imported products.
There is however, still, after Keck, ambiguity as to ‘certain selling
arrangements’.
Add relevant post keck law
ADD relevant Art 36
, Overview
Historically assessing, the Treaty of Maastricht was the first Treaty to introduce
the concept of citizenship. Here the free movement rights were specially kept
for the economically active people (and their families). After the European
Economic Community turned into the European Community, it twisted its
focus from being an essentially economic Treaty. This meant that the rights of
free movement could also extend to ones that were not economically active.
Coming to the relevant Articles for our purposes, the first is Article 20 TFEU.
Which states: ‘Every citizen holding the nationality of a member state shall be
a citizen of the Union.’ The national citizenship is not replaced, but rather is in
addition to the citizenship of the Union (Rottman case).
Art 20 provides rights to move and reside freely within a member state’s
territory, diplomatic and consular protection, right to vote and stand as a
candidate in European Parliament and municipal elections, and, the rights to
petition the European Parliament and Ombudsman.
Art 21 of the TFEU states: ‘every citizen shall have the right to move and reside
freely within the territory of a member state’. This Art might be subject to
limitations and conditions, which can be found in Directive 2004/38 (self-
sufficiency and the comprehensive sickness insurance).
Directive
The Citizenship Directive (2004/38) governs the situations where the rights of a
citizen or their family members, to move and reside within EU territory, is
concerned. The administrative formalities are cut to a bare minimum by it, the
scope of refusing entry or terminating the right of residence is minimized.
Lastly, and most importantly, it has codified the secondary legislation that was
previously dispersed.
