Unlocking EU Law Third Edition - PDF document

Unlocking EU Law Third Edition © Tony Storey 2011
 
 Essay Questions & Answers Free Movement of Goods The Fazzizi car company, in Italy, produces powerful sports cars, and it is one of the most popular brands in several Member States. However, there have been several media reportsrecently, raising two different concerns about Fazzizi cars. First, there have been reports of a series of fatal accidents, allegedly caused by defective brakes. Second, reports indicate that a defect in the fuel system of some cars means that the car’s exhaust emits twice as much CO2 (carbon dioxide) into the atmosphere as it should do. Fazzizi has issued a press release indicating that some cars made by rival sports car manufacturers use the same fuel system and so the emissions problem may not be unique to Fazzizi’s cars.The UK government is concerned about the reports and is considering adopting one or more of the following measures: a) A ban on the importation of all Fazzizi cars.b) A requirement that all sports cars must be inspected by British engineers before they can be imported.c) A ban on the use of all sports cars in the UK until their fuel systems have been inspected.d) An import duty payable at customs to cover the cost of the inspections in proposal (b).10e) A tax on all Italian sports cars sold in the UK.11 Define ‘goods’ by reference to the case of Commission v Italy This raises the “Mutual Recognition” principle. If a product is lawfully produced and sold in one Member State, why should it not be allowed in all other States? The UK government would need to rebut this presumption by reference to specific national characteristics. How might it do this? Does this satisfy the decision in Greenham & Abel that the human health derogation in Article 36 TFEU must be based on a “real risk” established using the latest, international scientific data? This suggests that the human health and life derogation in Article 36 TFEU and/or the Road Safety mandatory requirement under Cassis de Dijon may be available This suggests the Environmental protection mandatory requirement under Cassis de Dijon may be available This suggests that taking measures against Fazzizi cars only may amount to arbitrary discrimination, as in Conegate, especially if UK-manufactured vehicles are not subjected to the same standards This is a Quantitative Restriction, prohibited by Article 34 TFEU, as in Henn & Darby, Conegate, etc. There is possible justification under Article 36 TFEU on health grounds. But don’t forget the 2ndsentence of Article 36: might this be regarded as a disguised trade restriction? This is an MEQR, as defined in Dassonville. MEQRs are also prohibited by Article 34. As with proposal (a), there is possible justification under Article 36 TFEU on health grounds. Again, remember the 2nd sentence of Article 36. An inspection regime, as opposed to a ban, is less likely to be regarded as a disguised trade restriction, but it may be classed as arbitrary discrimination unless there is a similar inspection requirement for UK built sports cars. Also, don’t forget proportionality – is an inspection requirement necessary to protect human health? This is another MEQR, as defined in Dassonville. As with proposals (a) and (b), there is possible justification under Article 36 TFEU on health grounds (CO2 pollution is a potential health hazard.) As proposal (c) applies to all cars, there is no problem with the 2nd sentence here. There is also possible justification using Cassis de Dijon because this is an “indistinctly applicable” measure. Which of the mandatory requirements might be available? 10 This is a customs duty, as in Van Gend en Loos. 11 Taxes are compatible with EU law under Article 110 TFEU, but must not discriminate against imports. Unlocking EU Law Third Edition © Tony Storey 2011 Q. Discuss the compatibility of each of the above proposals with EU rules on the free movement of goods. Knowledge requirement You need to: Define goods Explain that Article 30 TFEU prohibits customs duties and equivalent charges on imports and exports, with very limited derogations available Explain that Article 34 TFEU prohibits quantitative restrictions (QRs) and all measures having equivalent effect (MEQRs) on imports Define QRs by reference to Geddo Define MEQRs by reference to Dassonville Explain that Article 36 TFEU provides derogations from Article 34, on grounds of public morality, policy, security and the protection of human, animal or plant health and life Identify that the protection of human health and life is applicable here Explain the case law on the human health derogation (e.g. Sandoz, Toolex Alpha, Greenham & Abel) Explain the second sentence of Article 36 – QRs and MEQRs must not discriminate arbitrarily against imports, nor impose a disguised restriction on trade Explain that there is a parallel list of derogations available under Cassis de Dijon – the “mandatory requirements” – but only where the measure in question is “indistinctly applicable” (Gilli & Andres), subject to a possible exception for environmental protectionWalloon Waste, Dusseldorp). Define an “indistinctly applicable” measure Identify that environmental protection and road safety are applicable hereand refer to relevant caselaw, e.g. Danish Bottles, Aher-Waggon, Motorcycle Trailers Explain the mutual recognition principle from Cassis de Dijon, and that it is rebuttable by reference to national characteristics (Muller) Explain the proportionality principle: restrictions on the free movement of goods must do no more than necessary to achieve their objective (Walter Rau, Beer Purity) Explain that Article 110 TFEU allows Member States to impose internal taxation unless it discriminates between imported goods and ‘similar’ domestic goods, or affords protection to competing domestic goods. Application requirement Identify That the import ban in proposal (a) is a QR on imports prohibited by Article 34, unless justified. That the compulsory inspections in proposal (b) are an MEQR on imports, being a trading rule capable of hindering trade, and therefore prohibited by Article 34, unless justified. That the ban on the use of sports cars in proposal (c) is an MEQR on imports, being a trading rule capable of hindering trade, and therefore prohibited by Article 34, unless justified. That the various proposals are potentially justifiable on health grounds under Article 36, subject to establishing a “real” risk to human health based on the latest, international scientific data. That an import ban on a particular product may be deemed arbitrary discrimination and/or a disguised restriction on trade. That alternative derogations may be available under Cassis de Dijon based on environmental protection and/or road safety That the mutual recognition principle and proportionality principles apply. Unlocking EU Law Third Edition © Tony Storey 2011 That the import duty in proposal (d) is a clear breach of Article 30 TFEU with no prospect of derogation That the tax payable on all Italian sports cars in proposal (e) is a discriminatory tax, and therefore incompatible with Article 110(1) TFEU. Discuss Whether the “series of reports” satisfies the requirement of the latest, international, scientific data Whether the UK would be able to identify a national characteristic and use it to rebut the mutual recognition principle Whether the import ban complies with the 2nd sentence of Article 36 TFEU and/or the proportionality principle Whether the compulsory inspections are distinctly or indistinctly applicable measure Whether the ban on the use of sports cars is a distinctly or indistinctly applicable measure.