Resultados de las dimensiones en relación a los indicadores e ítems (desarrollo del programa)

• Measures which in law apply to both national and EU goods but in fact have a particular burden on imported goods = same burden in law, different burden in fact

• Measures introduced to protect national markets/ simply having this effect

• Generally unlawful – unless justified (mandatory requirements or article 36 TFEU)

• They can be justified by:

• Article 36 (express derogations)

• Mandatory requirements/public interest etc set by the Court of Justice (Cassis de Dijon) Indistinctively Applicable Measures (2)

• Example:

– Product requirements: designation, form, size, weight, composition, presentation, labelling and packaging of products – measures that would apply to any goods indistinctively (foreign, EU and domestic goods) but they do create an obstacle to the market for the importer/exporter and thus entry to the market is higher.

– For example, certain information to be on packaging required by the importing countries (0% fat, sugar) etc.

– Indistinctively applicable measure:

• ***Cases 267 and 268/91 Keck and Mithouard (1993)

It is established by the case-law beginning with "Cassis de Dijon" that, in the absence of harmonization of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30. This is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods.

Indistinctively Applicable Measures (3)

***Case 120/78 ‘Cassis de Dijon’ (1979)

• Product requirement case (composition of fruit liqueur)/ indistinctively applicable measure

• Has 15-20% alcohol however national German regulations state that only fruit liquors over 25% of alcohol can be marketed.

• Court found that this was in breach of article 34 TFEU and that this lies on two main concepts:

– Mutual recognition –

• Principle that one product that is lawfully produced for market in one state should be lawfully marketed in another state.

– Market access

• Rule established by Germany in this case (product specification to be more than 25% for it to be marketed) creates obstacles of market access by the French Liquor.

• Court said that breach of article 34 TFEU / Can be justified by mandatory requirements:

– Public health

– Consumer protection

– Effectiveness of fiscal supervision – Fairness of commercial transactions

• National measures need to be proportionate and appropriate Indistinctively Applicable Measures (4)

***Cases 267 and 268/91 Keck and Mithouard (1993)

• Court distinguished between national measures that deal with product requirements and those that dealt with selling arrangements.

• Distinction: product requirements/certain selling arrangements

•

Some of the measures were considered to be conflicting with national sovereignty Product requirements Certain selling arrangements

MEEQR even if

indistinctively applicable = breach article 34TFEU

Not constitutive of an obstacle to intra-EU trade if

indistinctively applicable and no discrimination (=NO MEEQR) Unless justified (‘public-interest

objective’) or article 36 TFEU Thus, escaping the scope of the prohibition set by article 34 TFEU Pargaraph 15 and 16.

No clear distinction as to what are CSAs and what are product requirements.

Certain Selling Arrangements

• CSA = certain market circumstances rules

• Some examples:

– National rules limiting the time at which goods could be sold :

• Regulations imposing closure of petrol stations at night: Cases C-401 and 402/92 Boermans (1994)

• Sunday trading rules: Case C-418/93 et al. Semeraro Casa (1996) – National rules fixing the retail price for books: Case C-531/07 LIBRO (2009)

Indistinctively Applicable Measures (5)

• ***Case C-110/05 Commission v. Italy ‘trailers’ (2009)

• Court has not overruled Keck but did not discuss the case.

• Case about a trailers and motorcycles.

Authorities decided it was dangerous and the national authorities decided that on safety rules the use of trailers would be used – NOT ban on import and sale of the trailers.

• Importers of this product not happy and so alerted commission.

• Case went to court - not considered a QR but a ban on use of the products – ruled as a MEEQR

• Court said that this could have a considerable influence on the behaviour of consumers which in turn affects the access to the market of that member state.

• ‘56 It should be noted in that regard that a prohibition on the use of a product in the territory of a Member State has a considerable influence on the behaviour of

consumers, which, in its turn, affects the access of that product to the market of that Member State.

• 57 Consumers, knowing that they are not permitted to use their motorcycle with a trailer specially designed for it, have practically no interest in buying such a trailer (…). Thus, Article 56 of the Highway Code prevents a demand from existing in the market at issue for such trailers and therefore hinders their importation.

• 58 It follows that the prohibition laid down in Article 56 of the Highway Code, to the extent that its effect is to hinder access to the Italian market for trailers which are specially designed for motorcycles and are lawfully produced and marketed in Member States other than the Italian Republic, constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC, unless it can be justified objectively.

• 59 Such a prohibition may be justified on one of the public interest grounds set out in Article 30 EC or in order to meet imperative requirements (…). In either case, the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it.’

Courts here are considering a THIRD distinction.

Any measures that is indistinctively applicable but that can hinder the potential market because it has a considerable influence on the behavior of the market it is a MEEQR. Not justified by interest requirements of Article 36 deregulations so it is a breach of Article 34.

Indistinctively Applicable Measures (7)

Mickelsson (2009) – AG Kokott’s opinion was not in favour of qualifying at as a MEEQR however it was a CSA (certain selling arrangement).

Court has apparently created 3 situations:

Leading Case in a Nutshell QUALIFICATION:

Broken down into three parts:

Keck restrained Cassis de Dijon by creating a presumption of legality for certain selling arrangements considered as a new category

RESEARCH ‘CATCH-ALL CLAUSE’

Trailers reintroduced the access to market clause Criticisms of ‘Trailers’:

Isnt it too vague

Subsidiarity – aren’t the courts going too far? Need a balance of subsidiarity and proportionality Post-‘trailers’

• Example:

– Case 456/10 ANETT (2012)

• Not complete ban on use of products, just that they cannot be bought in a certain way.

• Measure did not have the effect of treating tobacco coming from other states less favourable (not distinctively applicable)

Distinctively applicable measures = MEEQR

Indistinctively applicable product requirements = MEEQR unless justified (mandatory requirements or article 36 TFEU) Any other measures which hinders access to market= MEEQR unless justified (mandatory requirements or article 36 TFEU)

Cassis de Dijon