European Union Law Free Movement of Goods - Articles 23-30 EC One of the most important freedoms of the common market is the free movement of goods in the EU. This issue could come up as an essay or problem question, and however it is examined there are a number of key statutes and cases which you must not fail to mention, as well as many other cases which may have similar facts to a problem question.
Article 23 - prohibition of customs duties or equivalent between Member States. Article 25 - M.States must not impose any new customs duties. See case of Van Gend en Loos (1963) where a new, higher duty was in direct contravention of Article 25 and so was challenged by the importers. Articles 28/29 - Quantitative restrictions on imports/expor imports/exports ts and all measures having equivalent effect shall be prohibited between M.States. These articles and the exact meaning of such contravening measures form the bulk of this topic. Case law has elaborated on this Article. Quantative restrictions include any system or ban which totally or partially restricts either imports or exports. They act as a barrier to free trade within the EU. Measures having equivalent effect (MEQRs) create complications as they are not defined by the Treaty.
KEY CASE - Dassonville This case is influential in that it provides the definition of a MEQR - ‘All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially potentially,, intra-Community trade.’ MEQRs have subsequently been divided into: Distinctly applicable measures which apply only to imported goods; and Indistinctly applicable measures which also apply to domestically produced goods. It is harder to show that these are in breach of free trade, however apart from a few exceptions which were identified in the following case, they are considered to breach Articles 28 and 29. KEY CASE - Cassis de Dijon The law in question was a German one that prohibited the sale of various liquors with an alcohol content of less than 25%. Cassis de Dijon was a French liquor with an alcohol content of 15-20%. Therefore although the regulation was indistinctly applicable, its effect was to ban
marketplace. There nceswere t two key principles to arise out of Cassis which explain the ruling of the case. The first principle (the Rule of Reason) allows for certain circumstances when indistinctly applicable restrictions would be allowed; if they could satisfy the following mandatory requirements: Effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. In Cassis it was unsuccessfully argued that the measure was necessary on the grounds of the protection of public health. Another example includes includes the Cinetheque case Cinetheque case where the cultural characteristics of a Member State were put forward as an exception and were considered proportionate, whereas the restrictions in Cassis to completely ban the product were disproportionate to the protection of public health concern. The second principle to come
recognition rule, which states that where a product has been introduced into one M.State, there is no reason why it should be imported into another, and any restriction would breach the Article. Cases discussing this rule include Walter Rau v De Smedt (cube-shaped margarine tubs) and Commission v Germany (German beer purity law). KEY CASE - Keck This case further divided indistinctly applicable measures into selling arrangements, which would not breach Article 28, and product-related requirements, which would. This was necessary as traders were beginning to challenge every national rule that even slightly limited commercial freedom. It was decided that not all differences should be removed due to one country’s rules being stricter than others. In Keck, a French law prohibited the selling of goods at a loss. This was considered a selling arrangement and so did not breach Article 28. In contrast, product-related requirements, which often relate to the
such as those in the cases of Mars and Schwarz , DO breach Article 28. Article 30 provides more exceptions whereby restrictions shall not be precluded on grounds such as public policy or the protection of health. The list is exhaustive and restrictions must, like those in the Rule of Reason, be proportionate. Important cases outlining Article 30 restrictions include: - Henn v Darby - Re Export Tax on Art Treasures - Conegate v Customs & Excise - R v Thompson
