EUROPEAN UNION LAW
W.B. Fisch Winter 2006
Assignment #21

[Ch. 13. FREE MOVEMENT OF GOODS: QUANTITATIVE RESTRICTIONS]

C. The Court's Elaboration of Free Movement of Goods Principles

1. The Cassis de Dijon Principle

• REWE-ZENTRAL AG V. BRANNTWEINMONOPOL, p. 508 (1979) ("Cassis de Dijon"): minimum alcohol content requirement for various categories of beverages.
• Do such requirements constitute "measures of equivalent effect"?
• What justifications did Germany offer for its requirements?
• Did the Court treat them as legitimate objectives? How did it determine that?
• did it find warrant for them in the exceptions of art. 30 (ex 36)?
• did it find warrant for them in the basic prohibition of art. 28 (ex 30)?
• What standard did the Court apply to the relationship between the measures at issue and the legitimate objectives of the MS?

2. Consumer Protection Cases

• COMMISSION V. U.K., p. 513 (1985): national origin label requirement, invalid
• is the purpose discriminatory as against other-MS goods?
• is the effect discriminatory as against other-MS goods?
• is a prohibition against false labeling sufficient to protect consumers?
• cf. HUNT, p. 515 (US 1977)
• COMMISSION V. GERMANY, p. 516
• Is a prohibition against imported beers using the term “Bier” unless they conform to the requirements of German law for that product, the least discriminatory alternative for the achievement of the goal of consumer protection?
• Schutzverband, n. 2 p. 518 (1983): if Italy allows weaker vermouth to be exported while keeping the name, can Germany protect its (presumed) consumer expectations by banning the importation of the weaker version? Would alcohol-content labeling be sufficient?
• COMMISSION V. SPAIN, Supp. p. 144 (2003): the “chocolate war” – who gets to define “chocolate” for labeling purposes? What’s wrong with “chocolate substitute”?

3. The Evolution from Cassis to Keck

• "Sunday Sales" cases: B&Q PLC, p. 519 (1989), Conforama and Marchandise, n. 3 p. 521
• do Sunday closing laws affect the flow of goods into the country?
• are they even-handed?
• are they more restrictive of trade than is "intrinsic to rules of that kind"?
• KECK AND MITHOUARD, p. 522 (1993).
• "re-examine and clarify" caselaw under ex art. 30: what change is effected?
• are all MS measures that can affect trade subject to art. 30 analysis?
• are only "selling arrangements" exempted? Why are they exempted?
• what is the new standard?
• how would it affect, for example, the Sunday Sales cases?
• does the Court give too little weight here to the trade-inhibiting effect?
• SCHMIDBERGER V. AUSTRIA, Supp. p. 147 (2003):
• Does the failure of Austrian authorities to prevent a private demonstration protesting environmental effects of highway traffic over a mountain pass, which completely blocks the highway for 28 hours, constitute a measure having equivalent effect to a quantitative restriction?
• If so, can it be justified as a protection of the fundamental right of freedom of expression?
• How does this demonstration compare with the French blockades of Spanish produce in French Produce Imports, CB p. 485? Are the differences relevant to the art. 30 analysis?

4. Post-Keck: Distinguishing Products from Selling Arrangements

• Regulation of Products:
• MARS, p. 525 (1995)
• CLINIQUE LABS, p. 527 (1994)
• Regulation of Selling Arrangements: is the distinction clear?
• COMMISSION V. GREECE, p. 530 (1995)
• LECLERC-SIPLEC, p. 531 (1995)
• GOURMET INT'L PRODUCTS, p. 532 (2001): where does this one belong?