Non-Financial Barriers

Applicable law
1. TFEU Art.34
  1. Quantitative restrictions on imports and all measures having equivalent effect, shall be prohibited between MS
    1. Prohibits QRs and MHEEs on imports
2. TFEU Art.35
  1. Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited
    1. Prohibits QRs and MHEEs on exports
3. TFEU Art.36
  1. The provisions of Art.34&35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on the grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between MS
    1. Derogations from Art.34&35 where QRs and MHEEs may be justified
Quantitative Restrictions
1. Definition
  1. Geddo Case 2/73 - "measure which amounts to a total or partial restraint of imports, exports or goods in transit"
    1. Commission v France (Strawberries) Case 265/95 - 'measure' includes positive action and failure to act
2. Case examples
  1. Commission v Italy Case 7/61 - ban on pork imports
    1. Commission v France Case C-1/00 - French refusal to lift EU ban on British beef imports following BSE crisis
      1. Commission v UK Case 124/81 - British requirement of import licence for importation of UHT milk and cream
3. Unlawful unless covered by Art.36 derogation
Measures Having Equivalent Effect
1. Definitions
  1. Directive 70/50 - divides into two categories
    1. Art.2 - Distinctly applicable measures ie. applying to imports only - make importation more difficult or costly than the disposal of domestic production
      1. Art.3 - Indistinctly applicable measures ie. applying equally to domestic and imported goods of a particular type - where the 'restrictive effect of such rules of FMOG exceeds the effects intrinsic to trade rules' ie. rules are out of proportion to their purpose, same objective can be achieved by means which are less of a hindrance to trade; will be lawful if proportionate
        IDAMs
        No overt discrimination based on origin but have greater restrictive effects for imports
        Case law examples...
        Cassis de Dijon Case 120/78
        Leading case...
        Cassis de Dijon Case 120/78 - two key principles established
        1) Principle of Mutual Recognition - any product lawfully produced and marketed in one MS must in principle be admitted to the market of any other MS
        2) Rule of Reason - 'Mandatory Requirements' - broadening of the permissible grounds of derogation from the principle of FMOG in situations where no harmonising legislation exists
        Mandatory Requirements
        Rau Case 261/81
        Commission v Germany Case 178/84
        May be occasions where MS may legitimately enact reasonable and proportionate measure restricting inter-state trade, for overriding reasons in the general interest of the union
        Commission v UK Case 207/83 - Origin marking increased production costs and held not to be a necessary consumer protection measure
        Commission v Ireland Case 45/87 - Pipes for drinking water must comply with certain Irish standards, only 1 Irish manufacturer could do this, held: was ok to specify standards of he pipes but could also have accepted foreign manufactured pipes which were up to a standard equivalent to the Irish one
        So IDAM will not violate Art.34 if imposed for a 'mandatory requirement' (overriding reason in the general interest) AND if proportionate
        Mandatory requirement examples (non-exhaustive) from Cassis - effectiveness of fiscal supervision, protection of public health, fairness of consumer transactions, defence of consumer
        Examples from later cases - environmental protection, health and safety of workers, protection of national socio-cultural characteristics
        Further split into 2 more categories!
        Indistinctly Applicable Dual Burden Rules
        Rules in MS of import which apply to imported and domestic goods, appear to impose equal burden on imported in domestic (eg product requirements), BUT in fact the import has to comply with 2 sets of requirements (rules in MS of origin and MS of import) so under additional burden
        Rules relating to goods themselves, usually affecting the standards and marketing of the products (eg size, composition, labelling etc)
        Unlawful under Art.34 UNLESS can be saved 1) under Cassis 'Rule of Reason' or 2) under Art.36 derogations
        Indistinctly Applicable Equal Burden Rules
        Burden of the rule in the MS of import falls equally on imported and domestic goods so impose no additional burden on the imported products (eg selling arrangements like Sunday trading)
        Keck & Mithouard Cases C-267&268/91 - (contrary to all previous case law) national measures prohibiting or restricting selling arrangements will not infringe Art.34 where: those provisions apply to all affected traders operating withing national territory, and they affect in same manner in law & in fact the marketing of domestic products and those from other MS
        Punto Casa Cases C-69&258/93 - Italian Sunday closing rules
        Banchero Case C-387/93 - Restrictions on places where tobacco can be sold
        Commission v Greece Case 391/92 - Baby milk could only be sold in pharmacies
        Morellato Case 416/00 - Italian law requiring bread to be sold wrapped
      2. DAMs
        Import/export restrictions, favouring/promoting domestic products (buy Irish)
        Case law examples...
        Commission v Italy Case 154/83 - Import/export restrictions
        Commission v Ireland (Buy Irish) Case 249/81
        Openbaar Ministerie v van Tiggele Case 82/77 - Price-fixing
        Schloh V Auto Controle technique Case 50/85 - Making imports more costly
        Dassonville Case 8/74 - Making imports more difficult by discriminating between different channels of trade
        Violate Art.34 unless covered by Art.36 derogations
  2. Dassonville Case 8/74 - "All trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having equivalent effect to quantitative restrictions"
    1. CofJ concerned with the effect, or potential effect, of the measure, not the intention behind it
      1. Very wide: virtually any law/policy that hinders imports/export in any way would be caught
        Reined in by...

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Non-Financial Barriers

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