EU Law Further Reading document - notes on all further reading assigned to use to get a first class essay.

Table of Contents
Topic 2 - Art 267.................................................................................................................2
Topic 3 - Free Movement of Goods......................................................................................3
Topic 4 - Fundamental Rights, the solange-doctrine; democracy.......................................11
Topic 5 - Direct Effect........................................................................................................38
Topic 6 - Indirect effect, incidental effect, direct effect through general principles.............56
Topic 7 - Remedies in National Courts: State Liability........................................................60
Anagnostaras attempts to answer this.............................................................................66
Topic 9/10 - FMP: workers................................................................................................73
This article was rly rly good..............................................................................................81
Abstract...........................................................................................................................81
........................................................................................................................................81
Topic 11 - EU Citizenship ................................................................................................102
Topic 12/13 - EU Social and Labour Law..........................................................................133
Topic 14: Religion case study..........................................................................................167
Topic 16: Eurozone..........................................................................................................172
Topic 17: Kadi.................................................................................................................173

,Topic 2 - Art 267
Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe

,Topic 3 - Free Movement of Goods
Weatherill on use restrictions
- When it comes to products with use restrictions: “if the national measure has a considerable influence on the
behaviour of consumers, it falls in principle within the scope of Article 34 TFEU (and requires justification). If
the influence is not considerable, the measure escapes the scope of application of Article 34 TFEU.”
- Problem: There is no test for this subject that can be connected to discrimination in fact or to protectionist
effect. The problem is the ambiguous character of the internal market, as defined by the Treaty itself →
principally in Article 26 TFEU.
- Insisting that Article 34 TFEU bites when a restriction on use exerts ‘a considerable influence on the behaviour
of consumers’ is a test that is doubtless incapable of uniform application by national courts.
- The underlying thematic anxiety is that the Court might find itself sufficiently plagued by litigants eager
aggressively to rely on EU law to challenge obstacles to their exercise of their commercial freedom that it may
once again throw Article 34 open to all-comers: that it might in effect undo the (imperfectly expressed)
curtailment in the scope of Article 34 which it effected in Keck and Mithouard. It has not yet done so.
- On paper the requirement of a considerable influence on consumer behaviour remains as an extra threshold
that must be crossed before a litigant can place on the regulator a burden to demonstrate justification for the
imposition of a restriction on use of a product. But in practice that threshold is ill-shaped and vague
Weatherill article
This article is about Art.34 TFEU (“Quantitative restrictions on imports and all measures having equivalent effect shall be
prohibited between Member States”). Application of the article, key cases and its limitations in the courts.

 Barnsley - fined for riding his Segway on the pavement
 Law didn't just ban their use on the pavement, but on public roads too
 Use was restricted to private land
 Did this raise a point of EU law?
 Restricting the use of this product --> does this restrict free movement of goods?
 If the Segway was imported from another MS --> can this be protected by reliance on Art. 34 TFEU
 If a claim was made against the restrictions on Segways - would this become a claim for (in his example) not being able
to cycle on the pavement
 Justified measure to promote safety - but if this goes against EU law, this could be a source to doubt continued
enforcement
 Fine for riding the Segway --> judge found this to be a violation of the Highways Act 1835
 What if the Segway was imported from another MS (W states this as a hypothetical)
 "Segways are treated much more generously in other Member States but that is not of itself a matter adequate
to allow the invocation of EU law" (1-2)
 "Argument is that this is a rule restricting the use of a product" (2)
 No discrimination at stake - this rule applies to all such products
 Product can be sold in the UK without any adaptation - "not a case of a barrier to inter- State trade
caused by disparity between technical standards governing the composition of the product" (2)
 Rule simply has the effect of restricting use
 Does this fall under Art.34 TFEU
 Very broad reach
 Commission v Italy [2009] ECR I-519
 Court of Justice dealt with Italian rules forbidding the uses of trailers attached to motorbikes on public roads
 Åklagaren v Mickelsson, Roos [2009] ECR I-4273
 Court of Justice dealt with Swedish rules forbidding the use of jet skis (personal watercraft) on particular
designated waterways
 Cases above ^

,  Neither rule made things difficult for imported goods compared with local products
 Neither rule made any demand that the product be adapted as a pre-condition for access to the target market
(Italy or Sweden)
 Product could be freely sold BUT it could not be used in the circumstances outlawed by the national
measure
 Did not fall under Art. 34
 "Have a considerable influence on the behaviour of consumers" (Swedish court at [26])
 If the national measure has a considerable influence, it falls within the scope of Article 34 TFEU
 When users are prevents or greatly restricted from using a product, it also falls within the scope of Article 34
 Segway case --> High Court did not think it violated Art.34 TFEU
 Munby LJ --> even if the matter fell within the reach of art.34, it would be justified
 "I argue that it is remarkable and troubling that EU law can properly be introduced into such proceedings in such an
unexpected fashion - and in a way that is very difficult to dispose of with complete confidence" (4)
 "Considerable" "greatly"
 Words carry heavy constitutional weight
 How can they be measured?
 There is not test, can change judgement to judgement
 E.g., of course physical obstacles to cross-border trade are caught by EU free movement law
 "Non-discriminatory rules that do not affect the composition of a product are different" (5)
 Tricky in fixing the outer limits of Art. 34
 Advertising
 Is a ban of advertising a product a trade barrier?
 Konsumentombudsmannen v Gourmet International Product [2001] ECR I-179
 An advertising ban may lead to discrimination in fact and if it does it is caught by Art. 34
 Preventing a marketing method falls under art.34
 Case C-441/04 A-Punkt Schmuckhandels GmbH v Claudia Schmidt [2006] ECR I-2093
 Requires justification where it ‘affects products from other Member States more than it affects
domestic products’
 Case 145/88 Torfaen BC v B&Q plc [1989] ECR 765; Case C-169/91 Stoke on Trent and Norwich City Councils v B & Q plc
[1992] ECR I-6635
 'Sunday Trading' cases
 Difficulty in determining what kind of infringement of commercial freedom would not fall under art.34
 Cases C-267 and C-268/91 Keck and Mithouard [1993] ECR I-6097
 "Intended to narrow the net: to limit the workload of courts faced with speculative deployment of EU
law to attack restraints on their commercial freedom and, deeper, to rescue EU law from a legitimacy
crisis whereby it would risk being invoked as the last desperate plea of the damned litigant" (6)
 Issue with the test developed in Keck and Mithouard
 "Allows any non-discriminatory national rule that does not affect the composition of the product but rather its
use to be challenged – subject only to the proviso that there be a considerable influence on consumer
behaviour or a great restriction on use" (6)
 Problem --> the treaty offers an overly ambiguous definition of the market
 Art.26 TFEU
 The Court cannot determine "a precise and reliable means to determine when there is (in short) an internal
market problem" (7)
 Two possible extreme options
1."It would be possible to review all national measures of regulation which exert some impact on the
market" (7)
2."A much narrower approach would confine review to physical or discriminatory obstacles to trade" (7)
 "The adjective ‘considerable’ and the adverb ‘greatly’ are designed exactly to signal that in its cases on
‘restrictions on use’ the Court has opted for a solution that is somewhere between these extremes: it rejects
Article 34 as an instrument of general economic constitutional review but it has instead fallen back on a test