Public Health Checks in Sweden - Case Study Example

EC LAW The case of Canute: In order to comply with the requirements of the Swedish Government about payments being made for public health checks at the frontier, it could be argued that this places increasing costs upon the manufacturers of gelatin from Denmark, such as Canute, which will have an impact on trade through restricting market access by some customers1. It may be argued that this could potentially be a violation of Article 28 of the EC Treaty. Any measure to restrict market access has been treated with strict disfavour by the EU and the result has been a restriction on the powers of the member States, such as that which occurred after the case of Cassis de Dijon.2 Another example that may be cited is the decision of the European Court of Justice in the case of Commission v United Kingdom3 in which no system of worker representation existed under the UK legal framework but the State was required to create one under two European Directives which “require[d] Member States to take all measures necessary to ensure that workers are….in a position to intervene through their representatives……”4 Case law has established that in all such matters which were once in the province of national law, it is now EC law that will pre-empt national laws, despite the principle of subsidiarity that was initially intended to allocate power to the smaller unit – i.e, the States5. Applying this, Sweden has the right to impose the restriction of health checks on gelatine which is a consumable product and could pose health risks, which would be a valid exclusion under Article 30 of the EC Treaty. As pointed out by Bernard6, the belief that Article 30 moves beyond the free movement of goods and services and prohibits non discriminatory obstacles to free movement has been eschewed in the light of case law7. However, the question of whether the payment being charged for the health checks could be held to restrict market access is a debatable one, because the same payment is also required from domestic producers of gelatine, therefore the requirement is being applied across all states, which is a valid exercise of EC law. Hence the Swedish law is compatible with EC law. Jane’s mail order business: Finnish law allows the sale of blood pressure monitors only in pharmacies, therefore in effect it is indirectly favouring Finnish manufacturers who will find it easier to transport and market the goods by placing them in pharmacies, as opposed to companies from other countries. The question that must be posed therefore is whether the requirement under Finnish law is valid and sustainable under Community law that that needs to allow for free movement of goods within the European Union? It may be noted that case law has established that in all such matters which were once in the province of national law, it is now EC law that will pre-empt national laws. For example in the case of R v Ministry of Agriculture8 para 18 clarifies that it would not be possible for a member State to assert its law where an EU Community Directive with a different objective exists - a Directive that has been established for the harmonizing of relevant measures between nations. The goal of the EC has been to introduce standards that will be acceptable to all countries within the European Union; hence any move to impede the free movement of goods and people within the European common market could be found incompatible with EC law. The Finnish law requirement may not have enough backing to be sustainable under EC law. The case of Piscine Products plc: Article 1 of the EC Treaty states that by “establishing a Common Market”, the goal is to “promote “balanced and sustainable development of economic activities” and “a high degree of competitiveness” among the states of the European Union.9 This case will specifically invoke Articles 28 and 29 of the EC Treaty which regulates the sale of goods within the internal market. Article 14(2) of the EC states that the internal market comprises “an area without frontiers” within the European Union, where there is to be free movement of goods and people. Article 28 states that “quantitative restrictions on imports and all measures having equivalent effect” are to be prohibited. However Article 30 qualifies these restrictions by stating that on grounds of public health, public morality or public security, restrictions may be permissible10. According to Feldman, Germany is the prime beneficiary from the free trade arrangements with the European Union, both in terms of imports as well as exports and most of its economic benefits arise from trade11. The questions arising in this case is whether Germany’s requirement that marketing of sausages with a meat content of less than 80% constitutes a restriction on imports that violates Article 28? The meaning of quantitative restrictions was clearly stated in the case of Riseria Luigi Geddo v Ente Nazionale Risi12 in which it was stated that “any measure which amounts to a total or partial restraint on imports, exports or goods in transit constitutes a quantitative restriction.” For example, a quota system was held to be a restriction of trade in the case of Salgoil SpA v Italian Minister for Foreign Trade.13 In the Dassonville case, the European Court interpreted the term “measures having equivalent effect” under Article 30 as a quantitative restriction14. At the outset therefore, it would appear that Germany’s restriction on the English company’s products could qualify as a quantitative restriction because it is a partial restraint on imports, filtering out all sausage products like Piscine which have no meat content. However, the case of Cassis Dijon15 set out two different rules which would apply to this case as well in the context of Article 30 of the EC Treaty. This case held that certain measures to restrict imports may be justified on grounds of protection of public health and other safety measures, which are deemed to be mandatory requirements. According to this principle - the rule of reason: “Obstacles to movement within the Community ….. relating to marketing of the products in question must be accepted in so far as…….recognized as being necessary to satisfy mandatory requirements….protection of public health, fairness of commercial transactions and the defence of the customer.”16 This is the first Cassis principle – the rule of reason, which was applied in the case of Cinéthèque SA17 where a restriction was deemed mandatory by the State for cultural activities18, Commission v Denmark (Re Disposable Beer Cans)19 where a restriction on import was justified on the basis of protection of the environment and Oebel.20 Therefore, the initial conclusion that may be drawn in the Piscine case is that the restriction by the German Government on the import of sausages with less than 80% meat could qualify under this rule of reason as not being restrictive, since it could be necessary in the interest of public health and to ensure that an inferior sausage product is sold. However the Commission also extended this principle in the rule of recognition that it set out in the same case, as follows: “There is no reason why, provided that [goods]have been lawfully produced and marketed in one of the member states,[ they] should not be introduced into any other member State.”21 Applying this rule, it may be noted that when Piscine products has been selling its meat lawfully within the UK, there is no justifiable reason why they should not be introduced into Germany. Although the requirement for 80% meat in the sausages is a valid requirement if it is also applicable to others within Germany, any restriction on its import would involve national measures on selling arrangements. The ECJ has already demonstrated its reluctance to be involved in such cases,22 however Piscine products does have the option using EC law, to contest the requirement under German law, on the grounds that it has been selling its sausages lawfully within the U.K. It will have even better grounds if Germany does not impose this requirement on its domestic products. The case of the traditional English garden products: The question of restrictions on import under Article 28 will also arise in this case, as also the two rules in the Cassis case. Applying the rule of recognition, it may be noted that Molly has been selling her products in the UK, hence she should be able to sell the products in other EC countries. In the Cassis case, the Court made it clear that when certain standards have been applied and found relevant in one member state, there was no reason to reject them in another State without a compelling reason. Such compelling reasons that would permit barriers to trade between member countries could only include such national legal provisions that pertained to public health protection, or the maintenance of fairness in commercial transactions or wherever the interests of the consumer were threatened. In Molly’s case, the reason for the Austrian government contesting the imports of traditional garden gnomes is that they were covered in toxic paint, which could prove hazardous to children and animals. The danger to public health could be a valid exclusion under Article 30, which allows restrictions to trade on that basis23. Hence, Molly’s complaint to the Commission may not go in her favour on those grounds. It must also be noted however, that according to Molly’s research, the same toxic paint she is using is also being used by domestic Austrian firms. In this case, the net result is that other countries importing garden products into Austria will be placed at a disadvantage as compared to Austrian manufacturers. This would not only constitute a discriminatory measure under EC law but would also affect the purchasing decisions of customers and impact upon free trading within the European Union24. As such, this would distort trade and the free movement of goods which is contrary to the goals of competition of the European Union and could be construed as illegal under community Law. Hence Molly would have a good chance of contesting the Austrian law. Bibliography Barner, N.W , 2005. The limited modesty of subsidiarity. European Law Journal, 11(3), pp 308-325 Bernard, Nicholas, 1996. “Discrimination and free movement in EC Law”, The International and Comparative Law Quarterly, 45(1): 82-108. Feldman, Lily Gardner, 1994. “Germany and the EC: Realism and responsibility”, Annuals of the American Academy of Political and Social Science, Volume 531:25-43 Haibach, Georg, 1999. “The interpretation of Article 30 of the EC Treaty and the “Dormant” Commerce clause by the European Court of Justice and the U.S. Supreme Court”, The International and Comparative Law Quarterly, 48(1): 155-167 Weatherill, Stephen 2007. “Cases and materials on EU Law”, Oxford University Press “Consolidated version of the EC Treaty” [Online] Available at: http://europa.eu.int/eur-lex/en/treaties/dat/C_2002325EN.003301.html Cases: Case 8/74 Procureur du Roi v Dassonville (1974) ECR 837 Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein ("Cassis de Dijon"), [1979] E.C.R. 649 Case C-5/94, R. v. Ministry of Agriculture, Fisheries and Foods, ex parte Hedley Lomas, [1996]E.C.R. I-2553 Case C-382/92 and case C-383/92 (1994) Commission v UK (1994) C-382/92 at para 23 and C-383/92 at para 26 Commission v Denmark (Re Disposable Beer Cans) (Case 302/86) [1988] ECR 4607 Case 120/78 Cassis De Dijon Cinéthèque SA (Case 60 & 61/84) [1985] ECR EC CAR case - 21, ECCAR, EC Vehicle Emissions Limits [Online] Available at: http://www.american.edu/TED/eccar.htm Keck and Mithouard (Cases C–267 & 268/89) Oebel (Case 155/80) (1981) ECR 1993 Riseria Luigi Geddo v Ente Nazionale Risi (Case 2/73) [1973] ECR 865 Salgoil SpA v Italian Minister for Foreign Trade (Case 13/68) [1968] ECR 453 Torfaen BC v B & Q (Case 145/88) (1989) ECR 3851 Read More