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Summary Case Studies

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A snapshot of the summary - Case Studies

  • 1 Free movement of goods

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  • 1. Good. How to define a good? Three:
    • Art. 26 TFEU: Four freedoms in internal market, including free movement of goods
    • Art. 34 TFEU: says this, now see if it applies
    • Definition of a good in ECJ Case Commission v Italy:
      • "Physical products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions." 
  • 2. Cross-border element. Two points:
    • Trade between at least two MS
    • Potentially affected countries should be considered as well acc to ECJ Case Pistre
  • 3. No special provision. One point:
    No other Treaty provision of secondary legislation applicable that would allow for such restriction. If nothing mentioned, do not assume!
  • 5. Quantative restriction or MEQR. Dassonville, three points:
    • Quantative restriction: limitation of the amount of imports
    • MEQR: having the same effect
    • ECJ Case Dassonville: Dassonville-formula
      • "All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having effect equivalent to quantitive restrictions"
  • 5. Quantative restriction or MEQR. What is the Cassis de Dijon ?
    1. Products which are produces or marketed in a MS may not be banned on introducing into another MS
    2. Unless the MS' Regulation is necessary in order to sustain the mandatory requirements for the general interest
  • 5. Quantitative restrictions or MEQR. What are the different outcomes of MEQR? Four:
    1. Discriminatory? MEQR
    2. Non-discriminatory? Product arrangement? Dassonville formula + MEQR
    3. Non-discriminatory? Selling arrangements? Keck formula, affects foreign products more than domestic products, MEQR
    4. Non-discriminatory? Selling arrangements? Keck formula, affects foreign products same as domestic products, lawful measure.
  • 5. MEQR: Keck Formula + selling arrangements. Three points:
    • Non-discriminatory
    • Selling arrangement in principle not MEQR, but still MEQR when they factually impede market. 
    • Selling arrangements:
      • not such as to hinder, to all relevant trades in national territory
      • affect in same manner, in law and In fact
      • marketing od domestic products and of those from other MS
  • 7. Proportionality. Four points:
    Only applied in the case of present justification!
    • Legitimate aim: written/unwritten justification
    • Suitable: measure can achieve its claim
    • Necessary: absence of more moderate means
    • Proportionate in the stricter sense: reasonable measure balancing all different interest
  • What could be a remedy if the measure is not justified?
    National court could impede a preliminary ruling art 267 TFEU
  • 2 Freedom of services

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  • 1. Which freedom? Services? 3 points:
    • Art. 57 TFEU. Services temporarily
    • Material scope:
      • catch-all provision (if other freedoms don't)
      • cross border element
      • provider not established where service is applied
      • recipient travelled to other MS to receive service
      • services itself across the border
      • commercial nature
    • Personal scope: 
      • natural and legal persons
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