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Free Movement Of GoodsResearch Title:The ECJ has been a key institution in the community in integrating the laws of the MS. Nowhere is this more obvious in relation to national laws on free movement of goods. With reference to the EC law on free movement of goods, cortically discuss whether the decision of the ECJ in this area either confirm or disprove this statement.
As the raison d’etre of the common market, the free movement of goods may be regarded as a fundamental freedom common to all states holding membership of the European Community. The role of the European Court of Justice as a decision-maker is critical in maintaining and ensuring that free movement can prevail between the United States of Europe. Its effectiveness in this capacity is determined by the outcome of cases where member state legislation is put to the test in terms of whether or not it breaches EC legislation for freedom of movement.
A plethora of cases have demonstrated that the ECJ takes seriously any attempts to restrict movement on the part of member states’ legislatures, and it will be seen that seldom has the ECJ been prepared to allow such infringement unless with very good reason. On the contrary, the European Court has consistently interpreted the relevant Treaty provisions in such a way as to give maximum effect to the basic objective: common goods must be able to move freely throughout the common marketplace. The single market aims to bring economic benefits to consumers, with the various benefits that affords the community, such as economic advantage to consumers, stimulated marketplace competition, and improved product choice. Ultimately, this author will conclude that the manifold and divers decisions of the ECJ in relation to relevant case law unequivocally confirms the above statement.
EC Treaty provisions encouraging the free movement of goodsThe concept of free movement of goods may be seen as stemming from Article 14 EC of the Treaty 1 which defines the single market as:"an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty."
There are a number of further and more detailed provisions including Article 23 EC dealing with the establishment of a customs union, Article 90 EC dealing with the prohibition of discriminatory taxation, Article 31 EC which is concerned with adjusting state monopolies to avoid discrimination between domestic and foreign goods and Article 87 EC which prohibits state aids which threaten to distort competition. However, the most important body of case law to the present debate revolves around Articles 28 and 29 EC, which together ensure the elimination of quantitative restrictions on import and exports, as well as measures having equivalent effect. #p#分页标题#e#Meaning of "Goods" and "ProductsThese terms are not defined in the Treaty. They have been interpreted by the ECJ in Commission v Italy 2 , as "anything capable of money valuation and of being the object of commercial transactions". In R v Thompson 3 , they were held to include collectors’ coins in gold and silver, provided they were not coins in circulation as legal tender.Object and effect
When interpreting the principle of free movement of goods the ECJ adopts a stringent approach and any exceptions are viewed restrictively. The effect, and significantly not the object is what has tended to be scrutinized by the ECJ. A national measure may infringe EC law unless it can be shown to be objectively justified as necessary to safeguard vital interests. Article 28 EC – Imports
Article 28 states:
"Quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States"Quantitative restrictions (QR’s)These are limitations on the import of goods fixed by reference to quantitative criteria such as amount of value. They are often referred to as quotas. A complete ban on the import of a particular type of good is a quantitative restriction, as per Commission v Italy 4Measures having equivalent effect to quantitative restrictions (MEQR’s)The phrase "a measure having equivalent effect" is not defined in the Treaty itself. However, the ECJ has given its own definition of measures having equivalent effect in case Procureur du Roi v Dassonville 5 . According to this definition:"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."This declaration is demonstrative of the ECJ’s strict interpretation of their duty to enforce the principle of EC legislation in this area. For example, it is not necessary to show an actual hindrance to trade between Member States: it is quite sufficient that the measure should merely be capable of such an effect.It is interesting to note that a measure which is not capable of hindering trade between Member States, which merely affects the flow of trade within a Member State, will not breach Article 28. In Oebel 6 a Belgian law banning the production and delivery to consumers and retail outlets of bakery products during night hours, designed to protect workers in small and medium-sized bakeries, was held not to be in breach of Article 28. Although delivery of imported products through the same outlets was precluded, "trade within the Community remained possible at all times". Moreover, a measure falling within the Dassonville formula but which is solely to the disadvantage of domestic products will not infringe Community law (Jongeel Kaas BV v Netherlands ) 7. From this it is apparent that the ECJ takes a strict approach to the enforcing the principle of free movement. It is a principle which has the interests of the community as a whole and the interaction of the divers member states at heart. The ECJ through these aforementioned judgments establishes this focus of concentration: it is not concerned with the fairness of individual and internal member state trade, but state interrelation.#p#分页标题#e#It can also be seen that the ECJ takes a highly guarded approach to protecting free movement. Caution can be discerned as the essence of the Court’s judgments, and the merest hint of a member state’s legislative capacity to frustrate the principle comes rapidly under fire. A measure having equivalent effect does not have to have an immediate or substantial effect on intra-community trade. The Court has held that Article 28 is not subject to a de minimis rule (Van de Haar ) 8. Any legislation which is capable of affecting trade between Member States, even indirectly, may infringe Article 28. However, Keck and Mithouard 9shows that the measure must have some discriminatory effect in that it must put the imported goods at a disadvantage before it can be said to restrict imports. Restricting the volume of imports is not enough if domestic goods are also similarly disadvantaged.State measureA measure having equivalent effect must be taken by an "organ of the state". Actions by private individuals or companies cannot fall within this definition. The ECJ can be seen to take quite a wide approach to construing what constitutes a state organ. A good example of an unusual interpretation was developed in Commission v Ireland 10. In that case, the Irish Government started a campaign to encourage Irish consumers to purchase homeland goods. The campaign encouraged by the government and indeed set up by a government minister. However the ‘front’ of the campaign was a private company. The fact that it had been set up for the purposes described was sufficient for the ECJ to deem it a state organ. The scheme was deemed to infringe Article 28 and the Court said that the state was sufficiently involved in the scheme to bring it into the public domain. What really mattered in that case was the Irish Government’s "considered intention… to check the flow of imports from other Member States". An MEQR need not affect imported products alone, although many cases have been concerned with measures that do. In Rewe 11 a requirement that apples had to be inspected before they could be imported into Germany, breached Art 28. This type of measure does not completely prevent the marketing of the product, but it can result in delay and inconvenience for the importer which may lead to fewer products being imported.Indistinctly applicable measures – Cassis testThe ECJ took an interesting approach in Cassis de Dijon 12, in that they drew a distinction between distinctly and indistinctly applicable measures. In that case the legitimacy of a piece of German legislation was being considered which lay down a minimum alcohol level of 25% for certain categories of spirits, including cassis. There was disparity between German and French liquor, in that whereas the former complied, the latter did not. The ECJ’s approach was to say that the German law fell within the Dassonville formula and was in breach of Article 28. The essence of the court’s judgment was that if goods are lawfully manufactured in a particular way in a given Member State, there is no reason why those goods should not be able to move throughout the United States of Europe without like constraints and liberties. #p#分页标题#e#However, the Court in that case did point out that where there was no central community legislation covering all members of the community, differences between the Member States legislation could be acceptable. It was stated by the ECJ in that case that:"Obstacles to movement in the Community resulting from disparities between national laws relating to the marketing of the products in question must be accepted insofar as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer."It was also stated that state legislation imposed to satisfy a "mandatory requirement of state" must be proportionate and the least restrictive measure possible. What can be seen from this judgment is that there is a degree of flexibility in the ECJ’s approach to the principle of free movement, albeit a tightly limited degree. In the Cassis de Dijon case, Germany was able to argue consumer defence as the justification for the law. This ground was valid, although the ECJ ruled that the aim of the measure was disproportionate. An example of a more appropriate measure which would have been Mandatory product labeling as to the concentration of alcohol within the product would be a less restrictive and just as effective measure. It is interesting to note that the ECJ have been flexible in their approach as to what may be termed "mandatory requirements". The protection of the environment may be regarded as a slightly more liberal example demonstrated by the case of Commission v Denmark . 13The "Rule of Reason"The approach taken in the Cassis case has been called the "Rule of Reason" construction and is applicable to Article 28. Thus if the measure can be proved necessary to protect mandatory requirements of state, then it will not breach the Article.The ECJ have demonstrated severity in their interpretation as to what constitutes necessity. A good example of this is Prantl 14 which involved wine bottles which under German copyright legislation were denoted as applicable to a particular regional wine. The firm concerned were importers of wine, one of which came from Italy in a bottle of similar shape to the one at issue. Once again the German government tried to argue consumer protection, although this time the grounds failed and the ECJ ruled that provided the Italian wine was produced fairly in accordance with Italian legislation, the German measure could have no application.Selling arrangementshttp://www.ukassignment.org/daixieEssay/Two joined cases, Keck and Mithouard 15, posed an interesting point of consideration to the ECJ, involving non-discriminatory legislation. The cases involved French prohibitions on resale of goods lower than purchase price. The ECJ ruled that these were permissible:"provided that those provisions apply to all affected traders operating within the national territory and provided they affect in the same manner, in law and in fact, the marketing of domestic products and those from other member states"#p#分页标题#e#There has been a considerable amount of case law since this case which has resulted in extensive argument as to what kind of situations in the marketplace are eligible to be categorized as selling arrangements. This is an example of a further area where the ECJ tend to be strict in their interpretation. In Mars GMBH 16 the manufacturers of the popular "Mars Bar" snack packaged their product with a wrapper, a large portion of which was a band printed with the words "10% increase". The government of the member state deemed this misleading to consumers, as the band was of a width greater than 10% of the packaging, and it was feared consumers would think the deal was better than it was in fact. It is submitted that the ECJ might well have been expected to take an approach whereby they sided with the consumer and decided that the product’s packaging should be redesigned. In fact, their allegiance to the Freedom of Movement principle outweighed concern for the consumer, and it was decided that the product manufacturers should not be forced to repackage their wares.In Clinique Laboratories 17, a further example of this type of case was considered by the ECJ. This involved the cosmetic companies products which bore the company name prominently on the packaging. In the member state concerned, the word "clinique" had connotations of pharmaceutical products, and the state demanded a change to the word "linique". Again, requiring a company to repackage their product, and moreover change their entire product’s name and identity was regarded by the Court as a gross infringement of Article 28.In one decided case, legislative restrictions on television advertisements for products containing alcohol during a certain timeframe was deemed an MEQR. That case is of particular interest because although it applied in law to imports and domestic products, it in fact put imports at a disadvantage. The approach taken by the ECJ was that a product which enjoyed particular market exposure in one member state via advertising to a select audience through a select medium should equally be able to enjoy the same standard of market benefit in any other EC member state.An example of a case which did present a genuine "selling arrangement" was Commission v Greece (baby milk) 18 which involved a piece of Greek legislation which required manufacturers of baby milk to sell their product exclusively at pharmacies. This applied across the board so that milk imported from other EC member states as well as milk produced in Greece was equally affected, and the grounds given for the regulation were health and safety.ConclusionIn conclusion this author refers again to the statement this essay set out to evaluate. The decisions of the ECJ which have been herein analysed indicate that, in terms of Free Movement of Goods, the ECJ has indeed been a key institution in the community in integrating the laws of the member states. However, it has also been observed that while the Court appear ever keen to involve themselves in regulating inter-state trade and the effect of member states’ respective legislatures, intra-state trade is conspicuously left as a domain without the remit of the ECJ. In this legal arena, the Court have firmly and strictly established their position as regulator of the common market.#p#分页标题#e#_____________________________________________________________________ESSAY ENDS -19_____________________________________________________________________1.The Treaty of Rome 1957[^ Return]2.case 7/68 Commission v Italy (re Export Tax on Art Treasures (No.1))  ECR 423,  CMLR 1[^ Return]3.case 7/78 R v Thompson  ECR 2247,  1 CMLR 47[^ Return]4.case 7/61 Commission v Italy (re Ban on Pork Imports)  ECR 317[^ Return]5.case 8/74 Procureur du Roi v Dassonville  ECR 837[^ Return]6.case 155/80 Oebel  ECR 1993[^ Return]7.case 237/82 Jongeel Kaas BV v Netherlands  ECR 1-3187[^ Return]8.case 177/82 Van de Haar  ECR 1797[^ Return]9.case 267/91 Keck and Mithouard  1 CMLR 101[^ Return]10.case 249/81 Commission v Ireland (re "Buy Irish" Campaign)  ECR 4005[^ Return]11.Rewe  ECR 1107[^ Return]12.case 120/78 Cassis de Dijon  ECR 649[^ Return]13.case 302/86 Commission v Denmark (re Disposable Beer Cans)  1 CMLR 619)[^ Return]14.case 16/83 Prantl  ECR 1299[^ Return]15.cases C-267 & 268/91 Keck and Mithouard  1 CMLR 101[^ Return]16.C-387 Mars GMBH[^ Return]17.C-315/92 Clinique Laboratories[^ Return]18.C-347 Commission v Greece (baby milk)[^ Return]19.Excluding footnotes, titles and quotations.[^ Return]BIBLIOGRAPHYCASEScase 7/68 Commission v Italy (re Export Tax on Art Treasures (No.1))  ECR 423, 
case 7/78 R v Thompson  ECR 2247,  1 CMLR 47
case 7/61 Commission v Italy (re Ban on Pork Imports)  ECR 317
case 8/74 Procureur du Roi v Dassonville  ECR 837
case 155/80 Oebel  ECR 1993
case 237/82 Jongeel Kaas BV v Netherlands  ECR 1-3187
case 177/82 Van de Haar  ECR 1797
case 267/91 Keck and Mithouard  1 CMLR 101
case 249/81 Commission v Ireland (re "Buy Irish" Campaign)  ECR 4005Rewe  ECR 1107http://www.ukassignment.org/ case 120/78 Cassis de Dijon  ECR 649
case 302/86 Commission v Denmark (re Disposable Beer Cans)  1 CMLR 619)
case 16/83 Prantl  ECR 1299
cases C-267 & 268/91 Keck and Mithouard  1 CMLR 101C-387 Mars GMBHC-315/92 Clinique LaboratoriesC-347 Commission v Greece (baby milk)EC LEGISLATIONThe Treaty of Rome 1957