1. Article 34 TFEU
    1. Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
    2. Art. 35- same for exports
    3. "equivalent effect"
      1. Procureur du Roi v Dassonville 1974
        1. 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 an effect equivalent to quantitative restrictions
        2. Whiskey needed certificate of origin from Scotland, but had been imported from France. Obtaining certificate would therefore be time consuming and costly
        3. Held: requirement for certificate had equivalent effect to quantitative restriction
        4. wide definition
          1. intention of measure irrelevant- only effect matters
          2. no threshold- even minimal effect prohibited
          3. "capable of hindering"- need not actually hinder, no need for empirical evidence
      2. Commission v Ireland 1988
        1. rules may be imposed by any organ of the Stage- eg local authorities
  2. Article 36 TFEU
    1. introduces exception
    2. The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on 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.
      1. exhaustive list
  3. Initial case law
    1. Types of measures
      1. Imports bans, quotas and licenses
        1. Commission v UK (re: UHT milk)
          1. UK legislation requiring authorisation for imported semi skimmed milk
          2. UK said it is a formality
          3. Court said this does not matter
          4. May not be known that licenses are merely a formality, or how uniformly licenses apply
          5. Capable of hindering trade (Dassonville)
      2. Origin marking
        1. Commission v Ireland (re: Irish souvenirs)
          1. Irish legislation requiring that imported souvenirs be accompanied by origin marking. Prohibited
      3. Veterinary, sanitary and similar inspections
        1. Simmenthal v Minister for Finance
          1. Italian leg requiring public health inspections carried out in relation to importation of livestock
          2. public health exception (Art. 36)?
          3. Held: Art. 36 exception is qualified- must be necessary and proportionate. Does not give Member States free reign
      4. Legislation favouring domestic production
        1. Commission v Ireland (Buy Irish campaign)
          1. State-funded campaigns promoting domestic products. Prohibited
          2. (legislation may not crystallise consumer habits)
      5. road blockade cases
        1. Commission v France 1997
          1. French farmers organise blockade to stop/delay arrival of Spanish strawberries
          2. State did nothing to stop the blockades
          3. Held: blockades capable of hindering trade, prohibited
        2. Schmidberger 2003
          1. Environmental demonstrations in Austria. Partial blockade of new motorway
          2. State does not stop blockades
          3. Held: restriction necessary and proportionate to protect public policy- right to protest
          4. Art. 36 exception applied
          5. restriction necessary and proportionate to protect public policy- right to protest
          6. Austrian gov had given notice of demonstration days in advance
          7. Had allowed demonstration but only for a limited time
          8. Blockade not on all lanes, some lanes left open
    2. Public morality cases
      1. Henn and Darby
        1. Importation of pornographic tapes from Netherlands into UK
      2. Conegate Ltd v Commissioners of Customs and Excise
        1. Sale of sex products from Germany into UK
      3. British gov said necessary to restrict importation of products to protect public morality
      4. Court held: it is not for EU to define public morality for all MS
      5. A36- no common yardstick to determine importance of public policy/what measures are necessary and proportionate to protect them
  4. indistinctly applicable measures
    1. Casis de Dijon 1979
      1. Rules in germany about minimum alcohol content (25% to be sold as alcoholic beverages)
      2. Casis had a lower alcohol percentage- could not be legally sold as alcoholic beverage
      3. Casis would have to change alcohol content/marketing
      4. Held: this was capable of hindering trade. Dassonville applies
      5. Art. 34 applies to measure that inhibit trade because they are different to rules in country of origin (measures do not need to be discriminatory)
        1. Principle of mutual recognition
          1. A product which is lawfully produced and marketed in one MS should be considered legal in another MS
        2. Rule of reason
          1. Exceptions to principle of mutual recognition are allowed when restrictions are reasonable
          2. "reasonable"
          3. necessary and proportionate to protect a public policy interest- MANDATORY REQUIREMENT
          4. fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer
          5. non-exhaustive list
          6. distinguish Art. 36- easier to justify a non-discriminatory measure
    2. Content controls
      1. Commission v Germany (re: beer purity)
        1. German legislation about beer purity
        2. In order to be legally marketed as beer, should not contain additives
        3. Should contain a number of specified ingredients- water, hops, yeast, barley
        4. Belgian beer would need to be changed in some way
        5. Held: measures prohibited as not necessary/proportionate to protect public health/consumer protection
      2. Commission v Germany (re: meat products)
    3. Marketing restrictions
      1. Commission v UK (origin marking)
        1. UK legislation requiring certain products refer to their origin. Held to be capable of hindering trade.
      2. Walter Rau v de Smedt
        1. Belgian legislation requiring margerine sold in cube shape packets.
        2. Making change was costly. Held prohibited as capable of hindering trade (Dawsonville)
      3. Commission v Denmark (re: beer cans)
        1. Beer to be sold in cans made from specific ingredients
        2. Court accepted environmental protection was a mandatory requirement
        3. Legislation was proportionate and necessary in order to protect it
  5. Post-Casis de Dijon case law
    1. Post-Casis de Dijon: Court thinks Art. 34 may have been interpreted too broadly?
      1. Blesgen v Belgium
      2. Quietlynn Ltd v Southend-on-Sea BC
    2. Cinetheque SA v Federation Nationale des Cinemas Francais
      1. French legislation prohibed sale of films/videotapes for a period of a year following their release into cinemas
      2. Measure not discriminatory- applied equally to films from France/other Member States
      3. French gov argued measure about protecting cinema, not about trade
      4. Court held measure was indistinctly applicable- Art. 34 applied
      5. However, laws justified as encouraged the creation of films, irrespective of their origin
    3. Torfaen BC v B & Q plc
      1. UK rules about Sunday trading
      2. A number of outlets from outside city centres challenged these rules, arguing that during the week they did not have many customers during week, and not allowed to trade on Sundays- so trade significantly affected by these rules
      3. They had lots of products imported from other Member States- argued rules were capable of hindering trade (Dassonville should apply)
      4. Held: Art. 34 applies
      5. However laws could be justified as long as there was:
        1. objective justification
        2. effects of the rules were proportionate
          1. to be determined by national courts