QueenBeex
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#1
Report Thread starter 10 years ago
#1
Can anyone just explain these to me? Like what the difference is and how you know when to use which as a defence for breach of article 28/29?
Thanks
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DustyM
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Report 10 years ago
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http://en.wikipedia.org/wiki/Rule_of_reason

Check this. It suggests that article 28 replaces article 30.
The rule of reason is essentially the proposition that a proportionality exercise must be performed by the Court to determine whether the effects of Member State legislation on the free movement of goods is justified in light of the legislation's stated goals.
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jacketpotato
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Basically,

Remember that Certain Selling Arranagements after Keck fall outside article 28 and 29 entirely.

If its a measure amounting to a total or partial restraint of imports, exports or goods in transit then you are looking at art 28. A breach of article 28 can ONLY be saved by the article 30 defences.

If its a "measure having equivalent effect", you are looking at art 29.
You need to separate out art 29 into distinctly and indistinctly applicable measures.

Distinctly applicable measures can ONLY be saved by the article 30 defences.
Indistinctly applicable measures can be saved by article 30 OR by the Cassis di Dijon mandatory requirements.

The rule of reason is another name for the Cassis di Dijon mandatory requirements. As above, they can be used to justify indisctintly applicable measures under art 29 ONLY.

Don't overcomplicate it. Hope that helps...
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Rascacielos
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Report 7 years ago
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(Original post by jacketpotato)
Basically,

Remember that Certain Selling Arranagements after Keck fall outside article 28 and 29 entirely.

If its a measure amounting to a total or partial restraint of imports, exports or goods in transit then you are looking at art 28. A breach of article 28 can ONLY be saved by the article 30 defences.

If its a "measure having equivalent effect", you are looking at art 29.
You need to separate out art 29 into distinctly and indistinctly applicable measures.

Distinctly applicable measures can ONLY be saved by the article 30 defences.
Indistinctly applicable measures can be saved by article 30 OR by the Cassis di Dijon mandatory requirements.

The rule of reason is another name for the Cassis di Dijon mandatory requirements. As above, they can be used to justify indisctintly applicable measures under art 29 ONLY.

Don't overcomplicate it. Hope that helps...
Sorry to bring up an old thread. Could you explain to me why distinctly applicable measures can only be saved by Art 30 but indistinctly applicable ones can be saved by either Art 30 or mandatory requirements. I get that distinctly applicable measures are 'worse' in that they directly discriminate, whereas indistinctly applicable measures only indirectly discriminate, which isn't quite as bad (!). But the distinction seems a bit arbitrary all the same.
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jacketpotato
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Report 7 years ago
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(Original post by Rascacielos)
Sorry to bring up an old thread. Could you explain to me why distinctly applicable measures can only be saved by Art 30 but indistinctly applicable ones can be saved by either Art 30 or mandatory requirements. I get that distinctly applicable measures are 'worse' in that they directly discriminate, whereas indistinctly applicable measures only indirectly discriminate, which isn't quite as bad (!). But the distinction seems a bit arbitrary all the same.
I suspect the technical legal answer is "because the ECJ said so". I agree with you that the distinction is quite technical and I personally I think it is dubious.

I don't remember what exact rationale the ECJ gave for introducing the distinction. I probably knew three years ago when I made the post but it has now been quite a while since I studied this stuff
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Najeeb Massoud
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Regards to the distinction between "distinctly applicable measures" and "indistinctly ones". Actually, the indistinctly applicable measures is more worse than the distinct one that's simply goes back to the bad faith & bad transactions. The general rule stipulates that "the rotating in written or verbal methods through the idea of escaping the rule of the law, does not benefit anyone who is not explicit. As long as the measures are seen and felt by the souls behind the curtains. Thus, the rotating is an illegal method causing a greater harm to states and individuals than any probable other harm". Therefore, the indistinctly applicable measures must be saved by article 30 and the mandatory requirements as they are not visible to the public.
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