Relevant Primary and Secondary Legislation - Essay Example

?Analysis of a legal problem [CASE 2] Relevant treaty provision The free movement of goods has been a key element in creating and developing the internal market. This principle is laid down by Articles 34, 35 and 36 of The Treaty on the functioning of the European Union (TFEU) and specifically Articles 34, 35 and 36 applies extensively to legal issues that borders on internal markets with emphasis on free movement of goods. In this context, internal market is used to depict companies within the European Union who carry their activities within the region. In this means that companies within the European Union region who would want to do business within a defined country and to and from another European Union country are all covered under the Treaty on the functioning of the European Union (TFEU); Articles 34, 35 and 36 (Bertch, 2008). In its logical form, the treaty seeks to promote free movement of goods to bridge the cross-border gap that exists between different European Union countries. Even regardless of such laws and treaty, some countries have been found to be putting undue restrictions on fellow European Union countries so that there would be a concentration of market in those countries. The strategy used by those who put the restrictions has been to place huge charges on cross border goods to discourage free movement. In response, Articles 23(1) and 25 (9(1) and 12) ECT of the treaty touches on prohibition of charges having an effect equivalent to that of customs duties, which discourages all such charges to the exclusion of a similar domestic product (European Parliament Fact Sheets, 2012). Relevant primary and secondary legislation From CJ Case 8/74, 11 July 1974, it could be seen that with reference to Olio Nuovo, Article 28(30), ECT of the Treaty on the Functioning on the functioning of the European Union (TFEU) can be applied to its logical conclusion to give him a lot of legal redress to the current situation in which he finds himself. In the first play, there is a primary legislature on the free movement of goods and services within the European Union region (Kuyper, 1993). As a marketer from Greece to Italy, Olio Nuevo is covered by this primary legislation because both countries are within the European Union zone. This is a very strong basis for Nuevo to begin any legal process with an ambition of putting forth legal damages for any losses that he might have recorded. This is because according to the case in which Nuevo finds himself, there is being an unconstitutional attempt of hindering, directly or indirectly, actually or potentially, intra-Community trade, which the European Parliament Fact Sheets (2012), states that “are to be considered as measures having an effect equivalent to quantitative restrictions.” What is more, there are secondary laws such as those that specify the kind of products and materials that could cross European Union neighbouring borders. Examples of such European Union laws are those on the forbidding of arms and drugs trade. Since Nuevo did not attempt to trade any of such illegal products, there also is a very strong legal case to be heard should Nuevo decide to pursue the case to its legal conclusion. Exceptions to the Rule As it is literary said, to every rule there are exceptions. The Treaty on the Functioning on the functioning of the European Union (TFEU), which makes previsions for free movement of trade across European Union members States borders also have its own legal limitation or exceptions as far as the application of the rules are concerned. Under Article 30 (36) of ECT of the treaty, factors such as protection of public health, public morality and public security are all captured as exemptions under which Member States may take personal measures on having effect equivalent to quantitative (European Parliament Fact Sheets, 2012). This means is that the interest of the consumer always comes first when dealing with the movement of good (Eeckhout and Govaere, 1992). The legal implication here is that the host country where Nuevo wants to start his market reserves some rights to ensure that the kind of commodity that is about to enter that country conforms to consumer protection laws (Proliferation of Weapons of Mass Destruction, 1993). From this direction, the country may reserve some right to want that the manufacturing of the products be done in their country so that they can monitor consumer wholesomeness. This not withstanding, Nuevo still has a point to proof as to the reason behind his denial of entry whether it is for consumer protection purposes or it is to limit his market opportunity as a foreigner and give that opportunity to members of the host country. Reference to relevant case-law A clear case-law that can be related to what Nuevo currently faces is that of the Cassis de Dijon judgement. The case has to do with the movement of goods in which The EuGH stated that obstacles for the trade between the member states, which result from differences of the national regulations over the marketing of the products concerned must be accepted in principle, if these regulations are necessary, in order compelling requirements to become fair. (Economy Point, 2012). The implication of this ruling to Nuevo comes from a number of perspectives. First, there has been an attempt to hide behind the freedoms given under Article 30 (36) of ECT to gain localised advantage for Italian products over Greek products by questioning the wholesomeness of the products that Nuevo was carrying. This is a situation that the judgement in the Cassis de Dijon frowns on because it defeats the idea of bridging the gap between member countries in terms of movement of goods. Another point would have to do with attempts made by the Italian authorities to as it were attempt to cast insinuations at the country of origin of the products that Nuevo is bringing in (Cavicchioli, 2000). The reason why such attempts to downplay the competence of certain countries of origins as formidable partners for some of these transactions has often been as a result of the economic performance of those member states. But it is in light of the support that weaker countries need from stronger ones that the treaty to allow free movement of goods is in place. Rights of the client Under the present circumstance where Nuevo can proof that the Olive oil was produced lawfully in Greece, Italy has no right to use the Article 30 (36) of ECT to argue on the basis of the protection of health. To this effect, Nuevo reserves his full rights as a member of the European Union State regardless of where he is bringing the products from. The first right that is protected is therefore the right of freedom of movement of goods. As a citizen of the European, the case law spells out how important it is that the right of Nuevo to move his trade be protected. In a situation where any laws that are inferior to the European Union laws try to inhibit this basic right, there is the need to seek legal hearing on the situation (Hunnings, 1985). The second right has to do with the right to choice of destination within the European Union region. We see from the case that there should not be any limitations and restrictions on the preference of a market destination especially on the principle of mutual recognition, which the Europa Summaries of EU Legislation (2012) notes that it “guarantees free movement of goods and services without the need to harmonise Member States' national legislation.” The Italian government therefore reserves no right to prohibit entry to Nuevo because of the origin of the products, which is Greece. As soon as this happens, it could be said that the Italian government is trying to case insinuations at a member state and they need to answer for this. Finally, the mere fact that the case law exists means that Nuevo reserves the right to legal redress. What this means is that Nuevo would have a fear hearing of his case in any legally constituted court and so it would be very important that Nuevo such legal redress to make up for the losses that he has experienced as a result of the delays he experienced. Defences the other party my raise There remain one basic defence that other party may possible raise against Nuevo. As a government who has the interest of the populace and the local consumer to protect, there is the possibility that the other party will raise a defence on consumer protection issues, which are enshrined in the Article 30 (36) of ECT. It could be argued that the Italian authorities stopped the road haulier transporting the Greek olive oil and prohibited the entry of the cargo into Italy because it could not guarantee the safety of the products with reference to its manufacturing. In most cases, countries have consumer protection agencies whose responsibility has to do with the regulation of manufacturing of food, drinks and other consumers to ensure that the quality and standard produced are high (Kapteyn, 1989). Once good are manufactured outside their territories, they tend to have a lot of rights in questioning the wholesomeness of the products. Again, the Italian authorities may defend themselves with the Agreements of minor importance, whereby they may argue that Vuovo’s outfit does not hold up to 10% of relevant market with reference to horizontal agreement and 15% of vertical agreement. In this case, they may claim that the Article 101 of the Treaty on the Functioning of the European Union does not apply to Vuovo’s company (Schroeder–Kochncke, 2005). Legal action and likely remedy to be obtained Indeed, Olio Nuevo have a strong case so should not have a problem to win the case in National court but if this national court should ask for advice European Court of Justice. It is therefore advised for the client to take legal actions against the Italian authorities by asking for advice European Court of Justice. Next, the disregard that the Italian authorities seem to be giving to Greece as a weaker economy needs to be questioned and explained in a legal court of competence. This is because such actions defeat the basic concept and idea behind the establishment of the European Union. Even more, the delays must be suited to gain monetary damages for resources through the delay. Another strong point that would have a lot of legal backing has to do with the fact that there were fiscal loss of resources whereby Nuevo had loss customers and retailers. There should be a quantitative estimation of the monetary loss so that the Italian authorities will be made to account for such losses. It is expected that a court of competent jurisdiction will hear the case and come out with a remedy that rules in favour of Nuevo and ensure that he gets his money back with interest. This is because even though the Italian authorities may argue on the basis of consumer protection, the authorities still had the right to conduct tests on the products to authenticate their wholesomeness. REFERENCE LIST Bertch , G. (2008).Controlling East-West Trade and Technology Transfer; Article: “COCOM: An Appraisal of Objectives and Needed Reforms”, Cavicchioli, Federico, "The Application of EC Competition Law to Non-European (U.S.) Corporations" (2000). LLM Theses and Essays. Paper 8. http://digitalcommons.law.uga.edu/stu_llm/8 Consolidated version of the Treaty on the Functioning of the European Union - PART THREE: Union Policies And Internal Actions - Title Vii: Common Rules On Competition, Taxation And Approximation Of Laws - Chapter 1: Rules on competition - Section 1: Rules applying to undertakings - Article 101 (ex Article 81 TEC) Economy Point (2012). Cassis de Dijon decision. Accessed May 13, 2012 from http://www.economypoint.org/c/cassis-de-dijon-decision.html Eeckhout, P. and Govaere, I. On Dual Use Goods and Dualist Case Law: The Aime Richardt Judgment on Export Controls; in publication: Common Market Law Review 29: 941-965, Kluwer, The Netherlands 1992. Europa Summaries of EU Legislation (2012). The mutual recognition principle in the single market. Accessed May 13, 2012 from http://europa.eu/legislation_summaries/internal_market/internal_market_general_framework/l21001b_en.htm European Parliament Fact Sheets (2012). 3.2.1. Free movement of goods. Accessed May 13, 2012 from http://www.europarl.europa.eu/factsheets/3_2_1_en.htm Hunnings, M. (1985). Legal Aspects of Technology Transfer to Eastern Europe and the Soviet Union, in Schaffer (ed.), Technology Transfer and East-West Relations, Kapteyn, P. J. G.; (1989). Introduction to the law of the European communities: after the coming into force of the Single European Act, 2nd ed., Laurence W. Gormley (ed.), Deventer Kluwer Law and Taxation 1990 Kuyper; (1993).Trade Sanctions, Security and Human Rights and Commercial Policy, in Mareceau (ed.), The European Community’s Commercial Policy after 1992: The Legal Dimension, Proliferation of Weapons of Mass Destruction (1993). Assessing the Risks; U.S. Congress, Office of Technology Assessment, Washington, DC; U.S. Government Printing Office. Schroeder–Kochncke (2005).Community Regime For the Control of Exports of Dual Use Goods, International Trade Law Review Read More