European Union Law.

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Dean Roberts Group 4 LLB (Hons) Year 2

EUROPEAN UNION LAW ASSIGNMENT

LLB YEAR 2 - 2002 /2003

One of the primary objectives of the EC Treaty is to permit the free movement of goods

within the ‘common market.’ To guarantee equality in the Member States, Articles 23

and 25 EC prohibit customs duties on imports and exports and of all charges having

equivalent effect.

However, the imposition of a customs duty is not the sole manner in which the free movement of goods can be hindered. Other restrictions, under the guise of administrative rules and practices, can also hinder the free flow of goods, and it is Articles 28  and 29 EC which were implemented to eradicate these restrictions.

Quantitative restrictions are any measures taken by Member States which amount to a total (ban) or partial restraint (quota) on imports, exports or goods in transit. ‘Measures having equivalent effect’ include not only openly protective measures applicable to imports ‘or’ exports (distinctly applicable measures), but also measures applicable to imports (or exports) and domestic goods alike, implemented for seemingly deserving causes (indistinctly applicable measures).

In the case of Procureur du Roi v Dassonville {case 8/74) [1974] ECR 837, the ECJ, based on Directive 70/50, introduced a definition of measures having equivalent effect to quantitative restrictions, known as the ‘Dassonville Formula’. It stated that:

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’.  

Such measures include regulatory criteria introduced to set minimum standards for the size, weight, quality, content, presentation and price of goods. Inspections and tests for conformity to standard are also such measures and the promotion of goods by reason of their national origin, which influences trade, is also deemed as such a measure. Failure by a Member State to prevent individuals from obstructing the free movement of goods, also falls within the ambit of such measures.

However, a measure falling within the Dassonville formula, which operates to apparently disadvantage domestic products, will not contravene Community law. In the absence of any rule of community law on the quality of [cheese] products, the Member States retain the power to apply rules of that kind to cheese producers established within their territory. This power extends not only to rules considered necessary for the protection of the consumer or public health but also to rules that a Member State may wish to enact for the purpose of promoting the quality of domestic production. (Jongeneel Kaas BV v Netherlands (case 237/82) [1984] ECR 483).  Such rules cannot however discriminate against imported products or hinder the exportation of products to other Member States. In the scenario before us, there is no evidence to suggest that the UK legislation is hindering exported or imported products and being consistent with the objectives of the common market, this reverse discrimination shall be tolerated and does not breach Article 29 EC.

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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 ...

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