B. Article 30:
Treaty-Based Limitations on Article 28
1. Health and Safety Cases
· COMMISSION V. U.K., p. 489 (1983): UHT milk subject to two
regulations:
- Licensing
requirement for imports
- Effect equivalent to quantitative restriction?
- Does importation raise health considerations?
- Is the licensing requirement necessary to
protect health interest? What alternatives are available?
- In-country
packing required for all UHT milk, regardless of origin
- Is this requirement in fact origin-neutral?
- Is it necessary for the protection of health?
What alternatives?
- Cf. DEAN MILK CO., p.
492 (US
1951): how would the Justices have dealt with the facts in UHT?
- Cf. Melkunie,
n. 3 p. 493 (1984), and Pasteurized Milk, n.4 p. 493 (1988): are
the cases distinguishable from UHT milk, or from each other?
· COMMISSION V. GERMANY, p. 494 (1994): prohibition against
importation of crayfish, not necessary for protection against specific disease
- Are
border inspections and health certificates a sufficient alternative?
- Cf. Maine v. Taylor, n.
1 p. 494 (U.S.
1986): is it distinguishable?
· ALBERT HEIJN
BV, p. 495
(1984): prohibition against marketing apples with certain pesticide residues
- Is the regulation origin-neutral?
- Who bears the burden of persuasion as to
tolerance levels?
- Commission
v. France, Supp p 141 (2001), “Mad
cow” beef from UK:
when EU lifts its ban on exports from UK,
can France maintain its
ban on imports from UK?
· SANDOZ BV, p. 497 (1983): gov't
authorization for vitamin additives to food
- Is the regulation origin-neutral?
- Would a maximum-level requirement for each
product be sufficient?
- is MS obligated to use the least trade-restrictive
means available to achieve a legitimate objective?
- Cf. Schumacher,
n. 2 p. 499 (1989): can a requirement that non-prescription medicinal
preparations be sold through a local pharmacy be justified?
·
COMMISSION V. DENMARK,
Supp p 142 (2003)
o
Do vitamin and
mineral additives to foodstuffs present a risk to public health?
o
Who bears the burden
of proof as to such a risk: the marketer or the regulator?
o
Is (domestic)
nutritional need an appropriate criterion for determining when the risk is to
be taken?
· COMMISSION V. GERMANY (German beer), p. 499 (1987).
o is the labeling restriction, keyed to ingredients, a
health measure? Can it be justified as a consumer-protection restriction? Is MS
required to use the least restrictive means of assuring consumer information?
o is the ban on additives a health measure? Why does it
fail on this ground?
· DECKER V. CAISSE DE MALADIE DES EMPLOYES PRIVES, p. 502 (1998)
Can a prior authorization requirement for insurance coverage of prescription
eyeglasses from another MS be justified?
o What was the stated purpose? Was it legitimate?
o Was the requirement shown to further the stated
purpose?
2. Public
Morality, Public Policy, and Public Security Cases
· Can a prohibition against imports be justified on
"public morality" grounds? HENN & DARBY, p. 504 (1979)
("indecent or obscene")
o is domestic production of the same article(s) also
prohibited?
o if the domestic prohibition is regionally varied, and in
some regions is less stringent than the import prohibition, is that necessarily
fatal? If not, why not?
o is there a Community standard for the level of
offensiveness required?
·
Can a regulation
of economic behavior be justified on "public security" grounds?
CAMPUS OIL, p. 506 (1984)
o normally, ex art. 36 does not apply to economic measures
o what is different where a non-oil-producing country
establishes a state-owned refinery and requires importers to buy a percentage
of their needs from it?
·
Commission v. Germany, Supp. p. 144 (2003): when a directive sets uniform
standards for “personal protective equipment”, and expressly prohibits
restrictions on sale of such equipment which satisfies those standards, but
exempts from this pre-emptive operation such equipment “designed and
manufactured specifically for the use of the armed forces or in the maintenance
of law and order”, is protective equipment for firefighters included in
the exemption?