2014
QUESTION
1. EU Member States suffer from high levels of binge drinking. This is particularly true of the UK. To address
this public health problem, the UK has enacted the (fictitious) Anti- Binging Act (‘the Act’) with a view to
reversing the current trends:
a) Section 2 of the Act requires that all alcoholic beverages be clearly labelled with standardised health
warnings indicating that the excessive consumption of alcoholic beverages causes liver cirrhosis and that
alcoholic beverages should not be consumed during pregnancy.
b) Section 3 bans the sponsorship of all sports events by manufacturers of alcoholic beverages.
c) Section 4 increases the level of taxes payable on all alcoholic beverages by 20%. The Government has made
clear that it will use the taxes thus raised to finance its fight against alcohol abuse.
The Food and Drink Federation (‘the FDF’) which represents the interests of food and drink manufacturers in
the UK is particularly worried about the impact that the Act will have on the competitiveness of its members.
It seeks your advice as to the Act’s compatibility with European Union law.
FEEDBACK
This question (on the free movement of goods) required consideration of the 3 Sections (or 4 Sections for LAW
314) of the fictitious Act and their compatibility with Union law. It also required an understanding of the
notions of ‘quantitative restrictions’, ‘measures of equivalent effect’, and ‘taxation’, and how these operate
within the internal market.
In approaching these issues, students could put into effect the 3-step inquiry featuring in the handbook: i) Has
any of the relevant Treaty provisions been breached by the Member State? ii) If so, can the Member State in
principle offer a legitimate justification for its disputed national measures? iii) Even so, the Member State must
still demonstrate that its disputed national measures are proportionate to achieving their objectives in
practice.
Article 34 TFEU (prohibition of quantitative restrictions and of measures having equivalent effect) had to be
identified. Related to this, students had to demonstrate an overall understanding of the Court’s contribution,
including (necessarily) the cases Dassonville (definition of measures of equivalent effect), Cassis de Dijon
(mandatory requirements, principle of mutual recognition) and Keck (for more on this see also question 3
below). A good answer had to demonstrate an understanding of the distinction between direct discrimination
and indistinctly applicable measures, ie measures applying to both domestic and imported goods; these
measures could be justified under the mandatory requirements (Cassis de Dijon). Also, students had to identify
that ‘public health’ falls under the scope of mandatory requirements. Better answers did actually point out
that, in principle, a broad margin of discretion is left to the Member States in this field.
As to (a), consideration could be given to Cassis de Dijon, the applicability of Article 34 TFEU and public health
as a justification, before concluding on the basis of the proportionality principle.
As to (b), consideration could be given to Keck and subsequent cases (especially the ones touching upon
advertising, eg Familiapress, De Agostini, Gourmet).
As to (c), students had to explain that in taxation, Member States enjoy greater discretion. Article 110 TFEU
had to be identified. Students had to explain that in the absence of harmonisation, Member States are free to
tax provided that they do not discriminate.
, 2015
QUESTION
Parabens are a class of synthetic preservatives frequently used in cosmetic and pharmaceutical products. Their
efficacy combined with their low cost explains their success. They are also used as food additives. However,
some scientific research suggests that parabens are associated with an increased risk of breast cancer. Even
though these studies are contested, they have sparked vivid controversy in several EU Member States.
- (a) France, where several cosmetic and pharmaceutical companies are established, has adopted the
(fictitious) Zero-Paraben Act, banning all cosmetic and pharmaceutical products containing parabens from
the French territory.
- (b) Italy has proposed a (fictitious) tax on all skincare products containing parabens. It has undertaken to
allocate the funds collected to finance public health campaigns on breast cancer prevention.
- (c) Germany prohibits the advertising of foods containing parabens on its territory.
- (d) At the same time, the European Commission has proposed a (fictitious) directive banning the
advertising of all cosmetic products in mass media, and in particular on television, in the press
(newspapers and magazines), on the Internet, on the radio and on billboards. The proposal is based on
Article 114 TFEU.
Measures (a), (b) and (d) are of significant concern to the L’Oréal group – the world leader on skincare
products – who fears that its profit margins may be seriously affected. L’Oréal is seeking your advice on the
compatibility of these measures with EU law.
Measure (c) is being challenged by FoodDrinkEurope – which represents the interests of the European Food
and Drink industry. FoodDrinkEurope is seeking your advice on the compatibility of this measure with EU law.
FEEDBACK
Preliminary points:
- Cosmetics, pharmaceutical and skincare products / foods = ‘goods’ using the Commission v Italy (Arts
Treasure) judgment of the Court [1968]
- Member States laws under review - ‘the State’ for the purposes of the free movement of goods
- L’Oreal is an international group operating in all EU Member States - no difficulty as to whether these
scenarios may be ‘purely internal situations’
French legislation:
- Non-fiscal restriction on the free movement of goods.
- Total ban on imports = quantitative restrictions (analogy with Henn and Darby [1979] which establishes
that a total ban on import is a quantitative restriction).
- Prohibited in principle under Article 34 TFEU.
- Justification: Article 36 TFEU – public health.
- Proportionality: the measure must be legitimate and necessary. On the facts of the case, the legislation
was adopted on public health grounds, not to protect the domestic market. There is therefore no reason
to believe that the measure adopted did not apply to all goods (French and foreign).
- Good students will note that the Court has granted a broad margin of discretion to Member States in
matters relating to the protection of public health. They will rely on Sandoz or other similar cases –
Member States do not have to rely on the majority opinion for the measures they have adopted to comply
with the principle of proportionality. The best students will refer to the precautionary principle.
QUESTION
1. EU Member States suffer from high levels of binge drinking. This is particularly true of the UK. To address
this public health problem, the UK has enacted the (fictitious) Anti- Binging Act (‘the Act’) with a view to
reversing the current trends:
a) Section 2 of the Act requires that all alcoholic beverages be clearly labelled with standardised health
warnings indicating that the excessive consumption of alcoholic beverages causes liver cirrhosis and that
alcoholic beverages should not be consumed during pregnancy.
b) Section 3 bans the sponsorship of all sports events by manufacturers of alcoholic beverages.
c) Section 4 increases the level of taxes payable on all alcoholic beverages by 20%. The Government has made
clear that it will use the taxes thus raised to finance its fight against alcohol abuse.
The Food and Drink Federation (‘the FDF’) which represents the interests of food and drink manufacturers in
the UK is particularly worried about the impact that the Act will have on the competitiveness of its members.
It seeks your advice as to the Act’s compatibility with European Union law.
FEEDBACK
This question (on the free movement of goods) required consideration of the 3 Sections (or 4 Sections for LAW
314) of the fictitious Act and their compatibility with Union law. It also required an understanding of the
notions of ‘quantitative restrictions’, ‘measures of equivalent effect’, and ‘taxation’, and how these operate
within the internal market.
In approaching these issues, students could put into effect the 3-step inquiry featuring in the handbook: i) Has
any of the relevant Treaty provisions been breached by the Member State? ii) If so, can the Member State in
principle offer a legitimate justification for its disputed national measures? iii) Even so, the Member State must
still demonstrate that its disputed national measures are proportionate to achieving their objectives in
practice.
Article 34 TFEU (prohibition of quantitative restrictions and of measures having equivalent effect) had to be
identified. Related to this, students had to demonstrate an overall understanding of the Court’s contribution,
including (necessarily) the cases Dassonville (definition of measures of equivalent effect), Cassis de Dijon
(mandatory requirements, principle of mutual recognition) and Keck (for more on this see also question 3
below). A good answer had to demonstrate an understanding of the distinction between direct discrimination
and indistinctly applicable measures, ie measures applying to both domestic and imported goods; these
measures could be justified under the mandatory requirements (Cassis de Dijon). Also, students had to identify
that ‘public health’ falls under the scope of mandatory requirements. Better answers did actually point out
that, in principle, a broad margin of discretion is left to the Member States in this field.
As to (a), consideration could be given to Cassis de Dijon, the applicability of Article 34 TFEU and public health
as a justification, before concluding on the basis of the proportionality principle.
As to (b), consideration could be given to Keck and subsequent cases (especially the ones touching upon
advertising, eg Familiapress, De Agostini, Gourmet).
As to (c), students had to explain that in taxation, Member States enjoy greater discretion. Article 110 TFEU
had to be identified. Students had to explain that in the absence of harmonisation, Member States are free to
tax provided that they do not discriminate.
, 2015
QUESTION
Parabens are a class of synthetic preservatives frequently used in cosmetic and pharmaceutical products. Their
efficacy combined with their low cost explains their success. They are also used as food additives. However,
some scientific research suggests that parabens are associated with an increased risk of breast cancer. Even
though these studies are contested, they have sparked vivid controversy in several EU Member States.
- (a) France, where several cosmetic and pharmaceutical companies are established, has adopted the
(fictitious) Zero-Paraben Act, banning all cosmetic and pharmaceutical products containing parabens from
the French territory.
- (b) Italy has proposed a (fictitious) tax on all skincare products containing parabens. It has undertaken to
allocate the funds collected to finance public health campaigns on breast cancer prevention.
- (c) Germany prohibits the advertising of foods containing parabens on its territory.
- (d) At the same time, the European Commission has proposed a (fictitious) directive banning the
advertising of all cosmetic products in mass media, and in particular on television, in the press
(newspapers and magazines), on the Internet, on the radio and on billboards. The proposal is based on
Article 114 TFEU.
Measures (a), (b) and (d) are of significant concern to the L’Oréal group – the world leader on skincare
products – who fears that its profit margins may be seriously affected. L’Oréal is seeking your advice on the
compatibility of these measures with EU law.
Measure (c) is being challenged by FoodDrinkEurope – which represents the interests of the European Food
and Drink industry. FoodDrinkEurope is seeking your advice on the compatibility of this measure with EU law.
FEEDBACK
Preliminary points:
- Cosmetics, pharmaceutical and skincare products / foods = ‘goods’ using the Commission v Italy (Arts
Treasure) judgment of the Court [1968]
- Member States laws under review - ‘the State’ for the purposes of the free movement of goods
- L’Oreal is an international group operating in all EU Member States - no difficulty as to whether these
scenarios may be ‘purely internal situations’
French legislation:
- Non-fiscal restriction on the free movement of goods.
- Total ban on imports = quantitative restrictions (analogy with Henn and Darby [1979] which establishes
that a total ban on import is a quantitative restriction).
- Prohibited in principle under Article 34 TFEU.
- Justification: Article 36 TFEU – public health.
- Proportionality: the measure must be legitimate and necessary. On the facts of the case, the legislation
was adopted on public health grounds, not to protect the domestic market. There is therefore no reason
to believe that the measure adopted did not apply to all goods (French and foreign).
- Good students will note that the Court has granted a broad margin of discretion to Member States in
matters relating to the protection of public health. They will rely on Sandoz or other similar cases –
Member States do not have to rely on the majority opinion for the measures they have adopted to comply
with the principle of proportionality. The best students will refer to the precautionary principle.
