In conclusion, we feel to require the UK government to interpret the Directive to include rights of associated persons would equate to a contra legem interpretation, so B should be successful in using this defence should P bring action against her.
B now faces a group of issues after trying to market her jewellery in other European Member States. These relate to the ‘free movement of goods’ between Member States encompassed by the ‘umbrella article’ of Article 26 of the Treaty of the Functioning of the European Union, intended to promote a single internal market between Member States. Member States are given the competence to regulate sale of jewellery, though the European Court of Justice has, in case law such as C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (the Cassis de Dijon case), placed restrictions on when measures that restrict the free movement of goods can be justified; through a Cassis mandatory requirement, an Article 36 TFEU derogation or if the measure relates to “selling arrangements” (as in cases C-267/91 and 268/91 Criminal Proceedings against Keck and Mithouard).
Article 34 TFEU prohibits ‘Quantitative restrictions on imports and all measures having equivalent effect’ the first decision is whether the current issues are actual quantitative restrictions (a ban or quota on imports), or measures having equivalent effect to a quantitative restriction (MEQRs). According to case C-2/73 Geddo v Ente Nazionale Risi, a quantitative restriction can be defined as ‘measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit’. Case C-8/74 Procureur du Roi v Dassonville provides a broad definition of MEQRs: “all 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 effect equivalent to quantitative restrictions”, and case C-109/09 Ker Optika v Del-dunantuli Regionalis Intezete reaffirmed this.
Looking closer at the landmark Cassis decision, the ECJ passed three principals relating to MEQRs. The first stated that even indistinctly applicable rules could still amount to MEQRs, (measures that prima facie do not favour domestic producers). Next, the ‘Mutual Recognition’ principal was established in paragraph 14 of the judgment. It was decided that if a product is produced lawfully in one Member State, it should be possible to sell it in any other Member State. Finally, in paragraph 8, the ECJ put forward what are known as the ‘mandatory requirements’, a list of justifications for Member States to use to defend their implementation of the measure in question. This is a non-exhaustive list but it includes “the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions, and the defence of the consumer”.
French law requires B to be registered as a jeweler in France, secondly to have a designated ‘finishing and polishing’ area for her jewellery. First we will assess the validity of these measures; as B will have to invest more time and money into meeting these requirements, the integration of her products into the French market is hindered. For this reason, these measures satisfy the initial requirement of the Dassonville test. As of the first principle, indistinctly applicable measures can be prohibited, so Article 34,can still prohibit these measures though they don’t blatantly prejudice importers. The mutual recognition principal aims to prevent the banning of the sale of products which are lawfully produced in another Member State, even if they were manufactured according to technical and quality rules different from those that must be met by domestic products. This relates to the requirement of a ‘finishing and polishing area’, if the jewellery passes standards of UK law, they are of an acceptable standard to sell in any Member State. With regards to the requirement of registration, the principal is designed to prevent the need for undergoing procedures repeatedly (the dual-burden principal).
So, unless the French government can justify the measures using either a Cassis mandatory requirement or an Article 36 justification, they amount to MEQRs. From the Cassis mandatory requirements, the French government would use the ‘defence of the consumer’ avenue, which covers both measures, while using the public policy derogation from Article 36 to justify the culturally prized finishing and polishing stage. These justifications must now undergo a ‘proportionality test’, as of the case C-261/81 Walter Rau Lebensmittelwerke v De Smedt PVBA. Here it is stated that when the measure ‘exceeds the requirements of the object in view, consumers may in fact be protected just as effectively by other measures’. It then goes on to give suggestions as to what other measures could have been taken. Also, we refer back to the Ker Optika case, which also states that the legislation should be checked that it is ‘appropriate for securing the attainment of the objective pursued’. Both suggest that the least restrictive measure should be taken, so, for the purposes of consumer protection, the requirement of every vendor to register is more restrictive than necessary; other methods such as a public warning campaign on, for example, illegitimate vendors could be launched to make sure the public are aware of less genuine jewellery. On the topic of the requirement of a finishing area, we think again, for both justifications, the measure is impossibly restricting. As it is a prized craft in France, and as, of course the government want to prevent sub-standard products, the government could provide finishing and polishing services centrally, for example.
The next issue B faces is with Danish law prohibiting the advertisement of jewellery in teen magazines. Again, this is an MEQR under the Dasonville test, as it hinders the intra-community trade of this jewellery. In order to decide which justifications the Danish government can use, we look again at Cassis to check whether the measure is distinctly or indistinctly applicable. Here the measure is a blanket ban on advertising in Teen magazines, so is indistinct in its application, so both Article 36 derogations and Cassis requirements can be relied upon. Looking at paragraph 16 of Keck; which states that if the measure relates to the selling arrangements of the product, then they don’t fall under Article 34. Firstly, the measure has to apply to all relevant traders operating within the national territories, which is true, as the Danish law prohibits all traders from advertising jewellery in teen magazines. Also, it has to affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Looking at the literal black letter of the law; the law does affect both kinds of traders in the same way. The more complex question of whether it affects both kind of traders in fact brings me to the joint cases of C–34–36/95 Konsumentombudsmannen (KO) v De Agostini (Svenska) Forlag AB and TV-Shop i Sverige AB as to whether there is ‘differential impact’. These cases deal with the issue of access to the market as is faced here. In paragraph 43 of the judgment it is stated that blocking the most efficient method of advertising is of course going to adversely affect non-domestic goods producers more. In B’s case, the magazine she wishes to advertise in is aimed at the target audience of her jewellery so would be efficient while being cheaper than paying for a national billboard or television campaign, and as domestic brands will be more well known to the people of Denmark than British brands, the prohibition of these adverts makes it more difficult to access the market (case C-254/98 Schutzverband gegen unlauteren Wettbewerb v TK-Heimdienst Sass GmbH).
Again, the Danish government can use both Article 36 derogations and the Cassis mandatory requirements to justify the measure. From Article 36, they could use the protection of health of humans. From the Cassis requirements also they could use the ‘protection of public health’ derogation. These must satisfy the proportionality test of Walter Rau again. We feel here the blanket ban on advertising greatly disadvantages non-domestic producers as explained above. Less restrictive measures could be used, such as the requirement of a health warning to be placed on the adverts, or again a public awareness campaign on body image and health.
The final issue that meets B is when her products arrive in Poland. On the border, a batch of the jewellery is turned away because it is inconsistent with the higher standards of consumer protection in Poland. These higher standards act as an MEQR because they restrict the harmonised measures set by the EU in their Directive 2009/48/EC; should B want to trade in Poland, she needs to invest further time and effort into her product, thus the Dasonville MEQR test is satisfied. Again, using Cassis, the measure is indistinctly applicable which means that the government can again use both Article 36 and Cassis to justify the measure. Again, looking at the mutual Recognition principal which dictates, “Goods which are lawfully produced in one Member State cannot be banned from sale on the territory of another Member State, even if they are produced to technical or quality specifications different from those applied to its own products”, so the measure created by the Polish authorities conflicts with this. Judging by the reason already given, it is likely that they will rely on both the ‘protection of health and life of humans’ derogation of Article 36, and ‘protection of public health’ justification of Cassis. Directive 2009/48 EC sets a harmonised set of standards for toys which is the absolute minimum requirement, whereas the TFEU sets a limit on how much the Member States can further restrict their standards. That is to say, Poland are free to expect higher standards as long as it doesn’t conflict with the Treaty’s aim, and the Cassis MEQR test. Knowing that these are MEQRs, we have to now test whether they are disproportionate restrictions on the Directive’s standards, and thus whether they come within the jurisdiction of Article 34 TFEU. On the face of it, the justification seems fair given the spate of deaths of toddlers, however, being a blanket ban it is very restrictive. From past case law, there seems to be a tendency of the ECJ to lean towards health warning labels, for example in Case C-178/84 Commission v Germany, where health labels were recommended, which are less restrictive but still achieve the aim required. Though, due to the severity of the situation in Poland, it is possible that this alternative may not be found to be effective in reducing the deaths by the ECJ, so it could deem the higher standards proportionate.
If any of the above measures are disproportionate MEQRs, she can rely on Article 34 in court in an action against the authority because it is directly effective according to the test put forward in the case of van Gend en Loos. This required four things, the provision to be sufficiently clear, which of course is applicable here as it is a short concise article stating the prohibition of quantitative restrictions and MEQRS. Next the article has to be unconditional, which it is. It must be based on negative obligation, which here it is requiring Member States not to do something (ie. place quantitive restrictions or MEQRs on imports). Finally it must not require further legislation on the part of the Member State, which here it doesn’t. B can thus use this legislation to launch action against the authorities, or continue business and use it as a defence, should the authorities launch action.
Bibliography
Cases
- C-26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration 1963 E.C.R 1, [1963]
- C-41/74 Van Duyn v Home Office [1974] Ch 358
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- C-271/91 Marshall v Southampton & South West Health Authority [1993] ECR 1-4367
- C-188/89 Foster v British Gas [1991] ICR 84
- C-14/83 Von Colson v Land Nordrhein-Westfahlen [1984] ECR 1891
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- C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1991] 1 ECR 4135
- C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649
- C-267/91 and 268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097
- C-2/73 Geddo v Ente Nazionale Risi [1973] ECR 865
- C-8/74 Procureur du Roi v Dassonville [1974] ECR 837
- C-109/09 Ker Optika v Del-dunantuli Regionalis Intezete [2010] ECR I-0000, point 67
- C-261/81 Walter Rau Lebensmittelwerke v De Smedt BVBA [1982] ECR 3961
- C–34–36/95 Konsumentombudsmannen (KO) v De Agostini (Svenska) Forlag AB and TV-Shop i Sverige AB [1997] ECR I-3843
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Statute
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European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December 2007, 2008/C 115/01
Statutory Instruments
- Commission Directive 70/50/EEC based on the provisions of Article 33 (7), on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty [1969] OJ L013.
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Toy Safety Directive 2009/48/EC of the European Parliament and of the Council, of 18 June 2009 on the safety of toys [2009] OJ L 170
Other Materials
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P Craig and G De Burca ‘EU LAW Text, Cases and Materials’ (5th ed) [OUP 2011] pp 634-692
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M Cuthbert ‘European Union Law’ (6th ed) [Sweet and Maxwell 2009] pp 69-77
- European Union, Free movement of goods: Guide to the application of Treaty provisions governing the free movement of goods, [ec.europa.eu, 2010] <http://ec.europa.eu/enterprise/policies/single-market-goods/files/goods/docs/art34-36/new_guide_en.pdf>
- Europa, Free Movement of Goods: General Framework, [europa.eu] <http://europa.eu/legislation_summaries/internal_market/single_market_for_goods/free_movement_goods_general_framework/index_en.htm>
