The Sale of Goods within the Internal Market - Essay Example

Case Scenario The case of William is one which 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 permissible. The moot question that arises in William case’s is whether the requirements spelt out by the Italian Government for import of his cheese into Italy could constitute a violation of Article 28 and therefore a restriction on imports? Their first requirement is (a) an inspection test to determine the listeria content of the cheese (b) a requirement that William change the label on his product. The meaning of quantitative restrictions was clearly stated in the case of Riseria Luigi Geddo v Ente Nazionale Risi1 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.2 Directive 70/50 must also be taken into consideration because it lists out all measures which are equivalent to quantitative restrictions, however in William’s case, there are certain existing EU Directives which member States are expected to comply with, which will also be relevant. The EU Directives which will apply in the case of William is Directive 92/46/EEC, which has held that listeria must be absent in 1 gm of hard cheese, however in soft cheese it must be absent in 25g samples taken from the product3. Also, the Directive 93/43/EEC is intended to ensure that all food products sold within the EU meet certain minimum health standards. Therefore, under this Directive, it may be noted that any requirements of the Italian Government on the inspections for listeria in the cheese will be only indistinctly applicable4, because it applies to cheeses produced within Italy and outside the country. Since manufacturers within Italy are also expected to comply with this requirement of inspection at their own cost, it is unlikely that that this will qualify as a measure that infringes Article 28. Moreover, Article 3 of Directive 70/50 clearly qualifies that indistinctly applicable measures will infringe Article 28 only if there are restrictive in excess, which is not the case here. The Italian Government’s requirement that the cheese should pass inspection is also justified under Article 30 of the EC treaty which holds the protection of public health as one of the measures which will justify restrictions in imports. There are two rules spelt put in the case of Cassis De Dijon5 which must be applied to William’s case. 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.” This is the first Cassis principle – the rule of reason, which was applied in the case of Cinéthèque SA6 where a restriction was deemed mandatory by the State for cultural activities7, Commission v Denmark (Re Disposable Beer Cans)8 where a restriction on import was justified on the basis of protection of the environment and Oebel.9 Therefore, the initial conclusion that may be drawn in William’s case is that the restriction by the Italian Government on grounds of listeria inspection will qualify under this rule of reason as not being restrictive, since it has been deemed to be necessary in the interest of public health. 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.”10 Applying this rule, it may be noted that when William has been selling the cheese lawfully within the UK, there is no justifiable reason why they should not be introduced into Italy. Although the requirement for the listeria inspection is a valid requirement if it is also applicable to others within Italy, 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.11 On an overall basis therefore, William does have the option to contest the requirement for mandatory inspection of the cheese for listeria before import into Italy. He can contest on the grounds that it is already selling within the U.K. But since there is an EU Directive that exists which specifically mandates inspection of the cheese to determine listeria content, it is likely that William will be expected to comply with the requirement of the Italian Government. However it is possible that the Italian Government’s requirements on labeling may be held to be unjustified and illegal. In the case of Commission v UK12 a requirement that mandated origin marking was deemed a violation of Article 28, and this was also the case in FIETJE13. To restrict William from importing his product into Italy on grounds of its resembling another product would not be one among mandatory requirements and would therefore not be effective. However the requirement that it pass listeria inspection may hold good, in spite of the fact that the cheese is already selling within the U.K., since the European Directive must be mandatorily complied with by the States. Hence, it would be advisable for William to undertake the inspection, especially if other manufacturers within Italy are also required to do so. Since this involves the issue of public health and safety, it is likely to be deemed justified. However, he can certainly contest the restriction on import based upon labeling, since the requirement to change labeling has nothing to do with the quality or quantity of information it contains, rather the restriction is being imposed on the basis of similarity with an existing product which is not an enforceable reason. Bibliography * Case 207/83, Commission v UK * Case 27/80, FIETJE * Case 120/78 Cassis De Dijon * Case 8/74 Dassonville * Cinéthèque SA (Case 60 & 61/84) [1985] ECR * Commission v Denmark (Re Disposable Beer Cans) (Case 302/86) [1988] ECR 4607 * 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 * “The European Union Directives” Vermont Cheese Council [online] available at: www.vtcheese.com/vtcheese/rawmilk_files/rawmilk4.html Read More