EU law

“such a restriction was nevertheless permissible if it was justified on the basis of public health concerns. In order to do so, the measure must be proportionate to the stated aim and should not be arbitrary or a covert attempt to interfere with trade between Member States.”

 However the court said the member state had to decide

 “…whether , unless it is apparent that, in the circumstances of law and of fact which characterise the situation in the Member State concerned, the protection of public health against the harmful effects of alcohol can be ensured by measures having less effect on intra-Community trade.”

On the other hand, in Leclerc Advocate General Jacobs stressed

“ the key role of advertising in building an integrated market. Advertising is essential to convey information to consumers that a new presence can be established in markets populated by existing familiar brands” 

however the court did not change its views in  Leclerc and as a result went against the view of Advocate General Jacobs.

As a result if the government of Burgeria sees the restrictions as proportionate, Porquette has not got a claim under Art 28 EC.

 b) In this particular problem, Porquette has problems involving Art 28 EC as she has problems with Italian customs duties, due to the authorities being worried about public health with regards to the pills.

This problem can be taken under the general heading of free movement of goods, and the specific details can be found in more specific cases.

Free movement of goods occurred as

“The creation of a more efficient market through the reduction of obstacles to transnational commerce has always been a fundamental aim of the European Union.”

Free movement of goods has traditionally been acknowledged as being of the paramount of significance.  It is there to ensure that the Member States do not impose non fiscal barriers to trade.

One of the main elements of free movement of goods is the removal of quantative restrictions on trade and all measures having equivalent effect on imports and exports through Art 28 EC and 29 EC. Quantative restrictions were defined in R v Henn and Darby as

        "…a prohibition on imports inasmuch as this is the most extreme form of restriction. The expression used in [Art 28] must therefore be understood as being the equivalent of the expression “prohibitions or restrictions on imports” occurring in Art 30”

Porquette’s problem is similar to the Cassis de Dijon case and Commission v Germany (Re German beer purity Laws) as both these cases regard imports which had strict restrictions on them. In Cassis de Dijon, there was a problem with the import of Cassis from France to Germany, as German legislation said that there had to be a minimum alcohol level of 25% per litre of spirit and the French Cassis had an alcohol level of 15-20%. Although the legislation applied to all spirits it had the effect of prohibiting the sale of French cassis. The ECJ held that

“the measures had equivalent effect to a quantative restriction. However the court went on to say that in the absence of community rules relating to the production and marketing of products”

The ECJ also established the principle of mutual recognition, which was followed in Commission v Germany (German Beer Purity) Under German law, beer was only able to have four ingredients and were not allowed any additives. The German authorities claimed this was to protect the health of the consumer, however the additives were allowed in other products. As a result the court held that the rules were in breach of Art 28 EC and they could not be justified under Art 30 EC, which states the derogations of Art 28 EC. The court held the rules were disproportionate, and used the findings of the World Health Organisation to see whether there were health risks or not.

Another case similar to Porquette’s problem is Officier van Justitie v Sandoz BV where Dutch authorities charged S with selling muesli bars with added vitamins. Under Dutch Law muesli bars could not contain added vitamins as it was held to be unhealthy. The Dutch authorities tried to justify themselves through Art 30 EC derogation for the protection of human health. It was held that in the absence of conclusive scientific evidence, national rules which prohibit the sales of foods which have added vitamins were justified under Art 30 EC as long as the rules were proportionate, however the added vitamins were found in other foods and as a result the measures were found to be disproportionate.

To see if Grassina has a claim from the authorities, it must first be seen whether or not Italy sells other diet pills. If this is the case the rules are seen as proportionate, however if not the seizure of the pills is not justified under Art 30 EC.

c) Fit and round are an anti-sizeist group aware of Porquette’s plans, and as a result are leading a protest and boycotting stores that sell the pills. This is similar to Commission v France, where France failed to take “all necessary and proportionate measures”  to prevent the free movement of fruit and vegetables from being obstructed by farmers. This lead to the Commission taking an action under Art 28 EC. The prevention of free movement to fruit and vegetables consisted of

“…inter alia, in the interception of lorries transporting such products in France and the destruction of their loads, violence against lorry drivers, threats against French supermarkets selling agricultural products originating in other Member States, and the damaging of those goods when on display in shops in France”.

French farmers stopped tomatoes from Belgium and strawberries from Spain being imported and tackled these products specifically in the supermarkets. Violent action was also taken, with the police not taking action to provide effective protection for the lorries and their loads. Protesters also were against Italian and Danish produce. The court held that

“Article 30[new 28] therefore does not prohibit solely measures emanating from the State which, in themselves, create restrictions on trade between Member States. It also applies where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State…[when a] Member State abstains from taking action or, as the case may be, fails to adopt adequate measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private individuals on its territory aimed at products originating in other Member States is just as likely to obstruct intra-Community trade as is a positive act”

As a result the court held that when the government does not do enough to prevent protesters, they are seen to be encouraging the protesters and so are under an obligation through Art 28 EC to take necessary and proportionate action to prevent it. Therefore if the Burgeria authorities do not take necessary and proportionate actions against Fit and Round, Porquette will have a claim through Art 28 EC as the group is seen to be a restriction on free movement of goods.

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