Free Movement of Goods

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  • Created by: Hope
  • Created on: 09-05-16 09:24
What are the four fundamental freedoms of the internal market?
Freedom of goods, freedom of services, free movement of workers, free movement of capital
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What is the idea concerning exceptions to free trade?
The idea is that free trade is the norm and any attempts to restrict it must be justified and proportionate
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Who do the rules apply to? Are there any limitations to this?
These rules regulate MS, which isn't always ideal, because the state isn't really the strongest economic actor; major corporations often have more power
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Why is this the case?
EU rules were set in 1957, where major companies weren't main players, so there aren't any rules against them
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What are other examples of state measures which inhibit trade?
Customs duties, inspections and non-tariff barriers
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What is a customs duty?
A tax imposed on foreign goods to make them more expensive, so people are more encouraged to buy local
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What are inspections?
often occur when dealing with food products at the border
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What are non-tariff barriers?
The more covert ways states intervene with free movement of goods
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What are goods? Authority?
"products which can be valued in money which are capable, as such, of forming the basis of commercial transactions" Commission v Italy
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How do you identify the difference between a good and a service? Example?
Goods often have a tangible feel. You can buy and sell services but you can't drop them on your foot. Schindler- lottery tickets. Tickets = good but Lottery= Service
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Is advertising a restriction on services or goods?
Restricting advertising is definitely restricting a service, but you could also argue that it restricts goods
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Which provision prohibits quantitative restrictions? What kind of effect does it have? Authority?
Art 34 TFEU-Directly effective, Ianelli
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Are total bans common? Why?
Total bans are very hard to justify, and will never really be proportionate so they're never used
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Can you justify a quantitative restriction? Provision? On what grounds?
Yes, under Art 36 TFEU. You can only justify them on public policy or health reasons, never economic
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Where are QRs normally found?
In MS laws, regulations and administrative practices?
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Do these conditions apply to non-state bodies? Who takes the blame? Authority? What was the rule?
MS can be liable where non-state bodies block free movement of goods - Commission v France- MS have to take all necessary and appropriate measures to ensure that fundamental freedom is respected on their territory
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What was the rule in Schmidberger v Austria?
Fundamental rights should be balanced against free trade, EU has to not be too economic
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What is a QR? Authority?
Measures which amount to a total or partial restraint of, according to circumstances, imports, exports or goods in transit. Geddo
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Which law defines distinctly applicable and indistinctly applicable measures?
Directive 70/50 EEC
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What is a distinctly applicable measure?
discriminatory measure that applies only to imported products
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What is an indistinctly applicable measure?
non-discriminatory measure which applies on the face equally to domestic and imported products
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What counts as a measure considered as having effect equivalent to a QR? Authority?
"All trading rules enacted by MS which are capable of hindering directly or indirectly actually or potentially intra-community trade- Dassonville
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What does Dassonville say about justification?
Where there is no community level justification, member states are able to create their own justification
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How might distinctly applicable measures impact on free movement of goods?
They are discriminatory, it is a different burden in law and fact which constitutes discrimination, can only escape the prohibition if a derogation can be applied
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How might indistinctly applicable measures impact on free movement?
Seem to not be discriminatory but are, same burden in law and fact. Can escape prohibition by meeting derogation reqs or where mandatory reqs apply from Cassis
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What is mutual recognition? What case does it come from?
In the absence of EU harmonisation where goods are lawfully produced and marketed in one MS, there is a presumption they will marketed in all MS. Cassis
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What are the steps to applying Cassis?
Is the product regulated by EU law? If yes, apply eu law, if no cassis raises the presumption that it should be free to be traded in other MS, but an MS can ban/restrict trade under art 36 TFEU/Cassis mandatory reqs
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What are the "mandatory requirements" from cassis?
host MS retains the right to regulate goods where the reqs apply equally to domestic and imported goods, where the measures serve a legitimate aim, and where the restriction is the least restrictive to secure the aim
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What are the advantages of the rules in cassis?
Ability of MS to regulate is maintained (national reg cannot be used easily to protect domestic product), increase in choice for consumers, no need for widespread harmonisation,used in legislation, form of subsidiarity
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What are the disadvantages?
risks in too much deregulation, blurred other boundaries of EU law when read with dassonville, art 34 seems to be read as a right to change, because to many national rules are open to challenge under it
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What are market circumstances and what case do they come from?
reqs on where, when and how goods can be sold, impose equal burden on all goods, do not impact on the manufacture of the product. Keck
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What are some examples of market circumstances?
regulating shop opening hours, requiring seller to be licensed to sell the product
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What did the CJEU do to stem all the opportunist legislation after Keck?
They drew a distinction between selling arrangements and product requirements
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What is the difference?
Selling arrangements are usually distinctly applicable and don't normally affect EU trade if there is no discrimination. Product requirements can be a barrier to trade
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What was the effect of this distinction?
It created even more litigation around the difference between what was a selling arrangement and what was a product requirement
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What are the two types of rules created in relation to selling arrangements?
static rules- affect time and place in which goods are sold- little impact on trade. Dynamic rules- ways in which manufacturer chooses to market a product- more likely to create an obstacle to trade
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Are there any problems with Keck?
It wasn't really a clever solution in light of these new changes, selling rules can be caught when they involve discrimination
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What is the 'market access' test?
Does the state measure restrict/hinder/impede market access?
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Is there a better test? According to who?
AG Jacobs in Leclerc-Siplec said that the appropriate test is whether there is a substantial restriction on the access.
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What principle is this test based on?
The test is based on the principle that all undertakings which engage in a legitimate economic activity should enjoy unfettered access to the whole of the community market, unless there is a valid reason why not.
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When do we use this test
Never, the CJEU decided not to follow it
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What are use restrictions? Example?
Use restrictions are when MS has imposed either a total ban or restriction on the use of a product. Commission v Italy
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What is the significance of use restrictions?
They don't follow the rules in Keck, and a market access test is at least part of the means for determining whether there is a breach of Art 34 TFEU
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What are the implications of use restrictions?
Keck has been narrowed, not overruled. Is the test now a substantial hindrance? What counts as substantial? Has art 34 become a constitutional right of unhindered access to the markets of other MS?
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Which case shows the court trying to bring together Keck and the product use cases?
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Card 2


What is the idea concerning exceptions to free trade?


The idea is that free trade is the norm and any attempts to restrict it must be justified and proportionate

Card 3


Who do the rules apply to? Are there any limitations to this?


Preview of the front of card 3

Card 4


Why is this the case?


Preview of the front of card 4

Card 5


What are other examples of state measures which inhibit trade?


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