Lead up to Keck - Lecture 7 Review - Summary Distinctly applicable MEES ú Article 36 Derogations (Exhaustive-environmental?) ú But see 2nd sentence Art 36TFEU "Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between MSs" ú Will be a legitimate aim since set out in Art 36! ú Proportionate? ú Arbitrary discrimination? ú Indistinctly applicable MEES ú Article 36 Derogations ú Mandatory Requirements ú Legitimate aim? ú Proportionate? Article 36 TFEU 2nd Sentence Such Prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between member states (this is especially important to consider in the case of distinctly applicable measures) Case 40/82 Comm v UK (turkeys) Import ban on poultry meat and eggs from all other Member states (except Denmark and Ireland) to protect domestic poultry' Shortly before Christmas 1981 Court found this to be a disguised restriction on imports -not a coherently established health related policy Generally, to succeed with a public health defence the measure must be indistinctly applicable Indistinctly Applicable MEEs What do we mean by this? Following are some categories-not meant to be exhaustive list !!! 1. Labelling Commission v UK (origin marking) Case 207/83 UK Law required clothes, electrical appliances, footwear and cutlery be marked with origin. Held to be breach of Art 34 TFEU. Addnl burden on importer; encourages latent nationalistic prejudice in favour of domestic goods 2. Packaging Requirements
Rau Case 261/81 Belgian legislation; butter/margarine; legitimate interest -- consumer protection; but disproportionate 3. Content Restrictions Cassis de Dijon Case 120/78 Minimum alcohol level Gilli & Andres Case 788/79 Italian legislation all vinegar to be made from wine Commission v Germany (beer purity) Case 178/84 German legislation prohibited additives in beer Zoni Case 90/86 Italian legislation -- dry pasta to be made only from durum wheat 4. Naming /label restrictions Estee Lauder Cosmetics (Clinique Case 220/98) German legislation prohibited misleading packaging Mars C-350/93 German legislation banned Mars' package labelling that it was "+10% " MRs must be proportionate: Case 261/81 Rau -- Margarine shape 17 (my notes --- prevention of consumer confusion between butter and margarine is justified-thus a legitmate aim. But requiring a certain shape for margarine lawfully marketed in another MS ... ) "exceeds the requirements of the object in view. consumers may in fact be protected just as effectively by other measures, for example by rules on labelling, which hinder the free movement of goods less." Thus-not proportionate. Even if legitimate aim-must consider if measure is proportionate for the objective sought. Mandatory Requirements From Cassis Traditionally --- can only be used to potentially justify indistinctly applicable measures since Cassis was a case dealing with indistinctly applicable measures-can not extend beyond facts of case Generally not applicable to distinctly applicable measures Article 36 Derogations " The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of ú Public morality ú