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EU | Free Movement Of Goods

Goods: Derogations

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Goods: Derogations

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  • Article 36 TFEU: derogations: public morality / public policy / public security / protection of health and life of humans, animals or plants / protection of national treasures possessing artistic, historic or archaeological value / protection of industrial & commercial property / if not arbitrary discrimination or disguised restriction on trade

Public morality

  • R v Henn & Darby: law prohibiting some pornographic materials / MEQR under Article 34 TFEU / public morality derogation allowed / materials could not lawfully be made or sold in UK / so law not not arbitrary discrimination or disguised restriction on trade under Article 36 TFEU
  • Conegate: lawful to produce & market the pornographic materials in UK / UK could not rely on public morality derogation

Public policy

  • limited the use: cannot be invoked for consumer protection or purely economic reasons
  • Campus Oil: Irish law required importers of petrol to buy a proportion from a State owned refinery MEQR under Article 34 TFEU The government argued that / maintaining Irish capacity to refine oil was in the interests of public policy & security / ECJ cautiously accepted went beyond economic concerns
  • Commission v France: France refused to legislate to deal with protesters / 10 yrs disrupted agricultural imports / arguing would increase violence / State should take all necessary & appropriate measures to ensure free movement of goods even where private persons responsible for interference / serious disruption to public order could justify non-intervention by the police in specific incident / not capable of justifying a general policy
  • R v Chief Constable of Sussex, ex p International Trader's Ferry: protests against live animal exports disrupting trade / Article 35 TFEU / Police escort required / limited resources only 2 days per week / HoL: police were trying to preserve law & order / not restrict exports & acted proportionately
bits of law

Goods: Derogations

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Protection of health and life of humans, animals or plants

  • Re UHT Milk: State burden of proving existence of a real health risk / response to risk must also be proportionate
  • Preussen Elektra: protection of environment?

Arbitrary discrimination or a disguised restriction on trade

  • Re Imports of Poultry Meat: UK banned turkey imports from most Member States / UK argued aimed to prevent disease / protection of the health of animals / ECJ decided in fact the law aimed to stop cheap produce coming into the UK from France / & was a disguised restriction on trade
  • German Beer Purity case: Member State must demonstrate the law is proportionate

Objective justification

  • Cassis de Dijon principles
  • indistinctly applicable / non-discriminatory restriction only (Re Restrictions on Importation of Souvenirs)
  • Member States prefer to argue under Article 36 TFEU (Officier Van Justitie v Sandoz BV)
bits of law
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