freemovement of Goods Watch

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Report Thread starter 1 year ago
hello guys, I have another that I would kindly appreciate help on how to answer it. thanks
The UK Government wishes to bring in the following laws: a) All pharmacies must close on a Sunday.
b) Cake containing dried fruit cannot be sold as ‘fruit cake’ in the UK unless it contains only flour, spices, sugar, dried fruit, butter and eggs.
c) A 5% duty on the sale of mead (strong honey wine) and of 15% on the sale of port and other fortified wine. The United Kingdom is the sole producer of mead but imports very large amounts of port and fortified wine. The United Kingdom government has argued that a reduced duty on mead sales is necessary, given the difficult economic climate that mead producers have experienced (bee populations are in decline), in order to ensure that mead, which is a traditional and historic English drink, will continue to be produced.
d) A charge to importers for the storage of imported wine. All imported wine must be stored in a Government Customs and Excise warehouse overnight so that wine bottles and containers can be counted by customs officers as part of customs formalities.
Advise the government as to the compatibility of these proposed laws with European Union Law on the free movement of goods.
Badges: 14
Report 1 year ago
General tips would be to cite as many relevant cases as you can, and consistently relate it back to the question. Give the other side as well - for example even if a measure is clearly discriminatory and would never in a million years get past the Commission, say which ground the UK would try to justify it on (using the various treaty derogations). Can't say I'll be this generous every time, but here's what I would put as an answer:

A) This is in the realm of a Keck selling arrangement as it is indistinctly applicable, applying to all pharmacy goods – building on the Cassis principle of certain provisions escaping the restrictions of Article 34 if they can be justified on public policy grounds. Cite the cases of Torfaen and City of Stoke as an argument for Sunday trading hours being limited in the UK in certain areas, and this being regarded as a Keck arrangement, therefore escaping Article 34.
However the Keck test is not limitless even if the measure is indistinctly applicable. It is more likely to be seen as an MEQR under Article 34 (defined in Dassonville as any trading rue which hinders trade either directly or indirectly – the latter applying here), and even though the closure is only for one day, there is no de minimus rule (cite Bluhme, not entirely relevant but adds in a nice extra point). Hence the UK government will have to try to justify their policy with Article 36 derogations, the only one being remotely applicable being public policy grounds. Note that it is a closed list.
Here the UK will have to pass the test of appropriateness, proportionality, and that it not be a means of arbitrary discrimination. It will likely fail on the first two, as there is nothing remotely justifiable about an outright ban for pharmacies closing – if anything it is contrary to preserving the health of humans! In any case the UK would fail on the Rosengren test – if there are less restrictive measure to achieve the same aim, then those must be adopted (assuming that the end goal was for pharmacies to close for the day of rest – can't their trading hours just be more limited, such as in Torfaen?).

B) Clearly an MEQR almost on all fours with the Italian and Spanish Chocolate cases. Indistinctly applicable as it applies to all importers including domestic traders, but clearly discouraging to foreign importers. Could also cite the German beer purity cases as very similar. These were all regarded as MEQRs, so the UKs proposal will not go down too well unless there is some serious public policy ground under Article 36 (the health and life of the British population depending on decent fruit cake lol). In any case, the Cassis principle of mutual recognition of goods (with the caveat of public policy) will not allow for a product lawfully produced in one state to be discriminated and relabeled etc. in another state.

C) Falls under Article 110 – imposing internal taxation of any kind in excess of that to similar domestic products. Foreign products must be taxed equally to similar domestic ones – hence the key test here is are mead and port similar enough to fall under 110? Note 110(2) that no state shall impose a taxation as to indirectly afford protection to domestic goods. Cite the beer and wine cases of the UK and Belgium and discuss whether you think the UK's tax will be allowed based on the similarity or not.

D) This looks like a CEE under article 30 (cite Commission v Italy 1969) which is clearly prohibited – the UK will have to try to justify it with the derogations. The only one it could feasibly argue would be the fee is conferring a 'specific benefit' to the importer – but the UK will fail here as it cannot be a flat rate (cite Ford Espana), and the cost must be in the specific interest of the importer and the exact value of the service provided (Commission v Italy – statistical levies). Clearly not relating to a system of internal taxation, and also clearly not provided for by EU law. Would be very hard for the UK to justify it.

Overall the UK has some serious work to do if it ever wants these measures to be justifiable. I mean in the questions on this which I do there's at least a glimmer of hope (think Scotch Whiskey Association territory). Hope this was helpful, sure helped my revision out.

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