Chapter 11 Suggested approaches to end-of-chapter questions

Free movement of goods II: non-tariff barriers
1. What is a measure having equivalent (MHEE)? (If you’re stuck, see Article 34 TFEU)

Measures having equivalent effect on imports include distinctly applicable measures which apply to imports but not domestically produced goods, and which make imports, or the disposal at any marketing stage, of imported products, subject to a condition, other than a formality, which is required in respect of imported products only, or a condition differing from that required for domestic products and more difficult to satisfy. Equally, it covers, in particular, measures which favour domestic products or grant them a preference, other than an aid, to which conditions may or may not be attached. Basically, therefore any measure which makes import or export unnecessarily difficult and thus discriminates between the two would clearly fall within the definition.

2. What was the very wide definition of an MHEE in the Dassonville case

'all trading rules enacted by a member state which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade'.

3. What are distinctly applicable and indistinctly applicable measures?

Those which apply respectively only to imports and those which apply on the face of it equally to both imports and domestic goods.

4. In what circumstances can a member state lawfully restrict or prohibit the free movement of goods from another member state?

Article 36 TFEU provides exceptions to the general prohibition of Article 34 TFEU. It provides that the provisions of Articles 34 and 35 TFEU shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property

5. What are selling or marketing arrangements?

Selling arrangements are broadly defined as rules relating to the market circumstances in which the goods are sold. Selling arrangements are usually equal burden rules which, following the Keck case, now fall outside of the scope of application of Article 34 TFEU. Selling arrangements are therefore measures dealing with where, when, how, and by whom goods may be sold.

6. Distinguish between equal burden and dual burden measures.

An indistinctly applicable rule is one which applies, at least on the face of it, to imported and domestic products alike. The same rule applies and imposes an equal burden on both products. However, this is not the conclusion that should be reached if one takes into account the fact that the importer may have already satisfied a similar rule in the state of export. Therefore, the imported product has to comply with two sets of product requirements in order to be marketed lawfully in the state of import: those operated by the state of origin and those of the state of importation. In this situation, the imported product is placed under an additional burden.

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