In this scenario, Antonex Plc would be bound by UK legislation regulating the quality of
cheese. In regard to the penalty of £500, it was held in Criminal Proceedings against
Guerrino Casati (case 203/80) [1981] ECR 2595, that Community law sets certain
limits in regards the control measures which it permits the Member States to maintain in
connection with the free movement of goods. The administrative measure must not
go beyond what is strictly necessary and must not be accompanied by a penalty which is
so disproportionate to the gravity of the infringement that it becomes an obstacle to the
exercise of that freedom. In this scenario, a penalty of £500 would not be
disproportionate.
Numerous cases employing the Dassonville formula failed to distinguish between distinctly and indistinctly applicable measures and therefore the ECJ in the case of
Rewe-Zentral AG v Bundesmonopolverwalstung fur Branntwein (Cassis de Dijon)(case 120/78) [1979] ECR 649), made this distinction.
Although an indistinctly applicable measure may fall within the Dassonville formula, it may be acceptable where the restrictions are ‘reasonable’ and will therefore not breach Article 28 EC. The restrictions shall be mandatory requirements relating to fiscal supervision, the protection of public health and the environment, the fairness of commercial transactions, the protection of cultural activities and the defence of the consumer. This is known as the ‘first Cassis principle’ or ‘the rule of reason’ and the exceptions are not exhaustive. Distinctly applicable measures cannot be justified under Cassis but may be justified under Article 30 EC.
The ‘second Cassis principle’ known as the ‘rule of mutual recognition’, provides that there is no valid reason why goods which have been produced and marketed in one Member State should not be introduced into another Member State. Member States however, will wish to contend that further measures are imperative to protect the interest in question. However these measures must satisfy the principle of ‘proportionality’, that is, can the measure be achieved by other means without hindering trade?
In this scenario, the Belgian authorities are invoking the protection of the consumer as a defence to their legislation, claiming that this interest can only be protected by implementing strict criteria in regard to the content and presentation of “Port Southampton” cheese.
In the case of Criminal Proceedings against Guimont (case C-448/98) [2000] ECR I-10663, it was reiterated at paragraph 27, that national rules adopted in the absence of harmonised rules and applicable without distinction to national products and to products imported from other Member States, are compatible with the Treaty in so far as the measures are necessary in order to satisfy overriding requirements relating to, inter alia, fair trading and consumer protection where they are proportionate to the objective pursued and that objective is not capable of being achieved by measures which are less restrictive of intra-Community trade.
In the scenario before us, the Food and Agriculture Organisation have confirmed that the cheese produced by Antonex is identically made as “Port Southampton” with rind. With reference to the principle of proportionality, the Belgian authorities cannot claim that the absence of rind is a major characteristic that justifies its refusal of the use of the “Port Southampton” designation or its sale in Belgium. The protection of the consumer can be maintained by appropriate information on the labelling of the cheese and thus the Belgian legislation is in breach of Article 28EC for hindering the free movement of goods.
To advise Antonex Plc as to the legality of UK law which imposes restrictions on the selling of certain items within stipulated hours in their motorway petrol station, we must establish whether this is, or is not, a measure equivalent to a quantitative restriction and therefore hindering the free movement of goods contrary to Article 28EC.
For the UK legislation to be deemed as such a measure, it must place obstacles to the free movement of goods by imposing ‘requirements to be met’ by such goods, such as designation, form, size, weight, composition, presentation, labelling and packaging.
However, where a Member State enacts national provisions restricting or prohibiting ‘certain selling arrangements’ and these arrangements do not hinder directly or indirectly, actually or potentially, trade within the community within the meaning of Dassonville, and these measures apply to all traders operating within that national territory in the same manner in law and in fact, they will not breach Article 28EC (Criminal Proceedings against Keck & Mithouard ( Cases C-267 and 268/91 [1993] ECR I-6097).
These arrangements are not impeding access to a national market for the importer, any less favourably than a domestic trader, even though they may have a detrimental impact on the overall volume of sales.
The scope of a selling arrangement operating equally in law and in fact was evaluated in the case of Schutzverband Gegen Unlauteren Wettbewerb v TK-Heimdienst Saas GmbH ( case C-254/98). Under Austrian law, bakers, butchers and Grocers were allowed to sell their goods from region to region, as long as they operated within a stipulated district of Austria, in which they were established. TK-Heimdienst was a trader who had sold goods beyond his district and an action was bought against him for infringement. The question was whether this rule was consistent with Community law?
On the surface, it looked very similar to a selling arrangement and operated in the same manner in law. However, it would impose a restriction on a trader from another Member State as they would be forced to establish themselves in Austria, and thus did not operate in the same manner, in fact.
In the scenario before us, there is no evidence of discrimination and therefore the UK legislation applies indistinctly to both UK products and products imported from other Member States.
Although certain items are limited to specific sale periods and items related to journeying are not, the items within the former are not being restricted viz-a-vis requirements to be met, but rather the volume of sales is simply being limited.
The permutations of the UK law will fall outside the scope of Article 28EC and thus, criminal proceedings against Antonex Plc will continue.
BIBLIOGRAPHY
- Kaczorowska. A (2000) EU Law for Today’s Lawyers, London, Old Bailey Press.
-
Kaczorowska. A (2002) Law of the European Union, 2nd Edition, London, Old Bailey Press.
-
Steiner. J & Woods. L (2000) Textbook on EC Law, 7th Edition, London, Blackstone Press.
TABLE OF CASES
-
Association Des Centres Distributeurs Eduoard Leclerc v Au Ble Vert’ Sarl (case 229/83) [1985] ECR 1.
-
Commission v Denmark ( Re disposable Beer Cans ) (case 302/86) [1989] 1 CMLR 619.
-
Commission v French Republic (case C-265/95) [1997] ECR I-6959.
-
Commission v Germany (case C-51/94) [1995] ECR I-3599.
- Commission v Ireland ( Re ‘Buy Irish’ Campaign ) (case C-249/81) [1982] ECR 4005.
-
Commission v Ireland ( Re Dundalk Water Supply ) (case 45/87R) [1988] ECR 4929.
-
Commission v Italy (case 50/83) [1984] ECR 1633.
-
Commission v Luxembourg ( Re Import on Gingerbread ) (case 2 & 3/62) [1962] ECR 425.
-
Criminal Proceedings against Geffroy (case C-366/98) [2000] ECR I-0000.
-
Criminal Proceedings against Guerrino Casati( case 203/80) [1981] ECR 2595.
-
Criminal Proceedings against Guimont (case C-448/98) [2000] ECR I-10663.
-
Criminal Proceedings against Keck & Mithouard ( Cases C-267 and 268/91 [1993] ECR I-6097.
-
Denkavit v Land Badenwurttemberg (case C-39/90) [1991] ECR I-3069.
-
Germany v Deutsches Milch-Kontor GmbH (case C-426/92) [1977] ECR 25.
-
Houtwipper (case C-293/93) [1994] ECR I-4249.
-
Hunermund v Landesapothekerkammer Baden-Wurttemburg (case C-292/92) [1993] ECR I-6787.
-
Jongeneel Kaas BV v Netherlands (case 237/82) [1984] ECR 483.
-
Procureur du Roi v Dassonville {case 8/74) [1974] ECR 83.
-
Openbaar Ministerie v Van Tiggele (case 82/77) [1977] ECR 25.
-
Quietlynne Ltd v Southend Borough Council (case C-23/89) [1990] ECR I-3059.
-
Rewe-Zentral AG v Bundesmonopolverwalstung fur Branntwein (Cassis de Dijon)(case 120/78) [1979] ECR 649.
-
Riseria Luigi Geddo v Ente Nazionale Risi (case 2/73) [1973] ECR 865.
-
Salgoil SpA v Italian Minister for Foreign Trade (case 13/68) [1969] CMLR 181.
-
Schutzverband Gegen Unwesen In Der Wirtschaft v Yves Rocher GmbH (case C-126/91) [1993] ECR I-236.
-
Snellers Auto’s BV v Algemeen Directeur Van De Dienst Wegverkeer (case C-314/98) [2000] 3 CMLR 1275.
-
Tasca (case 65/75) [1976] ECR 291.
-
Verband Sozialer Wettbewerb (case C-315/92) [1994] ECR I-317.
-
Walter Rau Lebensmittelwerke v De Smedt PVBA (case 261/81) [1981] ECR 3691.
-
Warner Bros Inc. & Metronome Video ApS v Eric Viuff Christiansen (case 158/86) [1988] ECR 2605.
The Single European Act 1986 defines this as “…an area without internal frontiers in which the free movement of goods, persons and services and capital is ensured in accordance with the provisions of the Treaty’ (art 14 EC.)
Article 28 EC provides that: ‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.’
Article 29 EC provides that: ‘Quantitative restrictions on exports and all measures having equivalent effect shall be prohibited between Member States.’
Commission v Italy (Re Ban on Pork Imports)(case 7/61)[1961] ECR 317.
Salgoil SpA v Italian Ministry for Foreign Trade (case 13/68)[1969] CMLR 181.
Riseria Luigi Geddo v Ente Nazionale Risi (case 2/73) [1973] ECR 865.
Commission v Luxembourg ( Re Import on Gingerbread )(cases-2 & 3/62) [1962] ECR 425.
Verband Sozialer Wettbewerb (caseC-315/92)[1994] ECR I-317. See also Commission v Italy (case 50/83) [1984] ECR 1633.
Commission v Ireland ( Re Dundalk Water Supply ) (case-45/87R) [1988] ECR 4929.
Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon)(case 120/78)[1979] ECR 649.
Tasca (case 65/75)[1976] ECR 291. See also Openbaar Ministerie v Van Tiggele (case 82/77)[1977] ECR 25.
Germany v Deutsches Milch-Kontor GmbH (case C-426/92)[1994] ECR I-2757.
Commission v Ireland (Re ‘Buy Irish’ Campaign) (case-249/81) [1982] ECR 4005.
Commission v French Republic (case C-265/95)[1997] ECR I-6959.
Quietlynne Ltd v Southend Borough Council (case C-23/89)[1990] ECR I-3059.
See also Association des Centres Distributeurs Eduoard Leclerc v Au Ble Vert’ Sarl (case 229/83)[1985] ECR 1.
Paragraph 27 of the decision.
In this case the German authorities invoked health issues but the ECJ held that this measure could not be justified as the measure was disproportionate to the desired aims.
Commission v Denmark (Re disposable Beer Cans)(case 302/86)[1989] 1 CMLR 619.
Warner Brothers Inc. and Metronome Video ApS v Erik Viuff Christiansen (case 158/86)[1988] ECR 2605.
For ‘road safety’ as a mandatory requirement see Snellers Auto’s BV v Algemeen Directeur van de Dienst Wegverkeer (case C- 314/98)[2000] 3 CMLR 1275.
Walter Rau Lebensmittelwerke v De Smedt PVBA (case 261/81)[1981] ECR 3691.
See also Scutzverbrand gegen Unwesen in der Wirtschaft v Yves Rocher GmbH (case C-126/91) [1993] ECR I-236.
Denkavit v Land Badenwurttemberg (case C-39/90) [1991] ECR I-3069.
Walter Rau Lebensmittelwerke v De Smedt PVBA, supra note 24.
Criminal Proceedings against Geffroy (case C-366/98)[2000] ECR I-0000.
Houtwipper (case C-293/93) [1994] ECR I-4249.
Commission v Germany (case C-51/94) [1995] ECR-I 3599.
See also Hunermund v Landesapothekerkammer Baden-Wurttemberg (case C-292/92) [1993] ECR I- 6787.
Kaczorowska. A (2000) EC Law for today’s lawyers, P379, London, Old Bailey Press.