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• 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