Criminal proceedings against Alfred John Webb Essay

The purpose of this contribution is to analyze the tellingship mingled with denomination 34 TFEU and subject ara rules regulating when, where, how and by whom a lawfully merchandise and foodstuffed crossway may be utilize. According to that provision, quantitative restrictions on imports and entirely musical rhythms having homogeneous effect sh exclusively be taboo amongst fraction States. The accordance is silent on how one should infrastand the words solely measures having alike effect. In Dassonville, the solicit held that these words cover every last(predicate) occupation rules enacted by member states which are capable of clogging, directly or indirectly, truly or potentially, intra-community make do are to be considered as measures having an effect equivalent to quantitative restrictions. This exposition is removed from being as operational as is some ages presumed, since it begs at least two school principals (Torfaen Borough Council, 1989). Fir st, what measures spend a penny profession rules and, second, how honorable an impact moldiness a measure swallow before it is hindering intra-community passel. In its practice, the appeal has attached very little, if any, importance to whether field of study rules motor to regulate trade in goods or whether they pursue early(a) aims. Indeed, in the model law it uses interchangeably the phrases trading rules,1 all commercial rules2, all measures3, all rules4 and all legislation5 to the regulatory vitrine matter of the national rule in question. The tribunals coun change is thusly on the effects, non the aim or purpose or the subject matter, of the measure in question. Similarly, regarding the second condition that the national measure be capable of hindering intra-community trade, the appeal has consistently refused in ruler to apply any de minimis test under expression 34.6 Measures which affect trade unaccompanied indirectly or potentially thitherfore free f all indoors the definition of a trade restriction (Torfaen Borough Council, 1989). Indeed, the butterfly in some(prenominal) aspects has disregarded statistical evidence showing that imports have change magnitude later on a measure was introduced, on the basis that imports might have increased even more in the absence of such a measure. Consequently, the definition of a trade restriction has become al some all-encompassing, and the legality of grand swaths of national rules in that locationfore depend on the proportionally and justification-test enshrined in Articles 34 and 36 (ex art. 30). This in turn reduces legal gain vigordty for both constituent States and traders, and implies a significant risk of judicial over charge for the Court itself. As the Sunday-trading saga illustrates, the Court is well aware of these concerns and its view in Keck, in relation to a ramifyicular group of national rules (i.e., marketing arrangements), can be seen as an attempt to me et them. Moreover, in another(prenominal) line of shells, the Court in reality has come close to introducing a de minimis test (albeit at a very low threshold level) by holding that the constraining effects which a national measure has on the free course of goods may be as well as un trustworthy and too indirect for it to be regarded as capable of hindering trade between Member States (Criminal proceedings against Alfred John Webb, 1981). The difficulty of establishing the appropriate scope of Article 34 of the pact is illustrated by the fact that while the Keck jurisprudence has been criticized for being too persistent and unable to catch all genuine barriers to trade, it has been argued that the Krantz case law is too difficult to apply and thitherfore generates legal un legitimatety.Use restrictions as measures of equivalent effect Against this background, let us turn to the human relationship between Article 34 and national measures which allow the importing and m arketing of a tending(p) growth, but restrict when, where, how or by whom it may be used (hereafter use restrictions). Such rules are very common in national legislation. As an use, one could mention a requirement for persons to have reach a particular age before acquiring or using the product, such as a rule preventing minors from purchasing and/or drinking alcohol. The notion also covers rules prohibiting the use of the product in certain places or at certain times, like a ban on the use mobile phones in airplanes or a prohibition on the use of fireworks save for a few days of the year. Other examples would be local planning rules prohibiting the use of a given kind of brick or tile for the construction of houses in a particular area or a ban of certain activities for which a good is normally used, for example a ban on hunting with dogs and horses. Considering the vast number of such rules, it is important to consider whether use restrictions should be regarded as trade r estrictions at all, and if so, how intrusive they moldiness be to be caught by Article 34. blush a prohibition on wearing a particular sheath of clothing, such as a burka, in public places is arguably cover by this concept. On the one hand, the aim of such rules is normally not to regulate trade. Moreover, they largely do not affect the cut-rate sale of import goods more than they affect the sale of domestic goods. Finally, with a literal recital of Article 34 of the Treaty and the Courts own ruling in Dassonville, it may be questioned how rules which do not limit the importation and marketing of the relevant product, but alone if regulate how it may be used after its sale, can be said to constitute trading rules( Procureur du Roi, 1974). On the other hand, it is clear that some limitations on how a product may be used can negatively affect gross sales and import to a very significant extent. Indeed, whereas a prohibition on using mobile phones in airplanes hardly has any suc h effect, a ban on using fireworks all year except on 31 December is likely to (greatly) reduce demand for, and thus sales and import of, that good. Similarly, one may imagine that a ban on the use of SUVs in congested urban zones would constitute an efficient substance for diminishing sales and import of such cars to the benefit of more environmentally friendly vehicles. Still, while it may be relatively easy to gestate that rules completely banning the use of a given product constitute measures with equivalent effect to a quantitative restriction, it may be questioned whether rules merely limiting its lawful use pick up to be subject to a common European judicial consider as to their legitimacy, suitability and necessity. To resolving this question, it is, in our view, necessary to consider the practical and economic effect on trade of rules restricting the lawful use of goods. An argument can be made that, with the exception of (virtually) complete bans on use, the effects o f use restrictions resist fundamentally from the effects of product related rules, and that use restrictions should rather be compared to selling arrangements.Part B parapets of the free movement of goods are prohibited by Art 34 TFEU. Art 56 and Art 57 TFEU provide the same prohibition with regard to the freedom to provide and receive proceedss. Up until now, the case law on restrictions of the free movement of goods has been far more extensive and nuanced, curiously with the distinction between product requirements and certain selling arrangements made in the famous Keck-decision. However, with an increasing case load the Courts attention fronts to have gradually shifted to Art 56 and Art 57 TFEU. Even though goods and runs are cover by separate Treaty provisions, it has been argued that the restriction of those two market freedoms requires twin treatment be arrest of their substantial similarities and the fact that they are economically often powerfully related. This cl ose relation is, for example, visible in the area of advertising. In state the question of whether a national ban on advertising is restricting, the tenseness could lie either on the advertised product or on the advertising service. The Court itself has held that, in the field of telecommunications, it is difficult to determine generally whether it is free movement of goods or freedom to provide services which should gather up priority, because the two aspects are often intimately linked. As A.G. Jacobs pointed out in Sger, it is sometimes even difficult to distinguish between goods and services. An educational service could for example be provided by sending books or video-cassettes to a recipient in another Member State. In this situation there are both reasons to deal with this situation under Art 34 TFEU, as well as under Art 56 TFEU. sometimes a diverseiation becomes even more elusive. In situations where only the service itself moves for example by cable or through th e internet the only difference to the sale of goods is the immaterial nature of the offered service in business line to the material nature of the good.6 Because of this close relation between goods and services, a different treatment of restrictions according to the choice of legal basis would seem imperative in many cases. In this paper, I willing analyze the relationship between restrictions of the free movement of goods and the freedom to provide services Is there a uniform restriction approach under Art 34 and Art 56 TFEU, and can the Keck-distinction between product requirements and certain selling arrangements be transposed into the field of services?( Procureur du Roi, 1974). It arises that both restriction-tests are found on the same rationales of mutual recognition and nondiscrimination. Further, there is no need for a separate dominion of market bother because market entryway is the aim of the restriction test rather than an independent restriction criterion. Fin ally, it will be demonstrated that there is a need for the establishment of the categories of service requirements and arrangements for the provision of services under Art 56 TFEU equivalent to the Keck-judgment.Restriction of the Free Movement of Goods Art 34 TFEU prohibits quantitative restrictions on imports and all measures having equivalent effect. The wording of the provision, especially with regards to equivalently effective measures, is not inherently clear. As a consequence, the Court of Justice was given great discretion in interpreting and defining the scope of application of Art 34 TFEU. The Dassonville case in 1974 was the foremost opportunity the Court took to address the question of what national legislation could, in principle, constitute a measure having equivalent effect. The Court unconquerable to give Art 34 TFEU a very loose meaning and stated that such measures are, all trading rules enacted by Member States which are capable of hindering directly or in directly, actually or potentially, intra-union trade. In the important decision Cassis de Dijon the Court also naturalised the principle of mutual recognition (Bond van Adverteerders and, 1988). According to this, Member States are prohibited from restricting the sale of goods that have been lawfully produced under the rules of another Member State. The restriction is prohibited even if it results from the application of national regulations that do not distinguish between national and imported products (indistinctly applicable measures). The principle of mutual recognition seeks to prevent go downting a double issue on imported products by requiring them to trace with two different sets of rules. If the product complies with the home State rules, any other Member State must in general accept that product on its market. Controversy arises when the principle of mutual recognition and the principle of home. State controls are used synonymously. In a broad interpretation mut ual recognition is defined as a mechanism of allocation of regulatory competency to the country of institution designed to avoid a dual regulatory burden (Graziana Luisi and Giuseppe Carbone, 1984). Others throw away the focus on solveal parallelism and the created further regulatory infinite for the soldiers State control through the creation of the mandatory requirements exception. The host State can invoke those mandatory requirements, also known as public arouse requirements, to justify the national rule and thus stop its regulatory power. However one wants to look at it, it is clear from the case law that there is no automatic recognition or nonsensitive regulatory power of the home State because it is limited by the word meaning of mandatory requirements and the principle of functional equivalence. Therefore whenever home State control is mentioned, it has to be borne in mind that it is just a general speculation of the allocation of regulatory power which can be rebu tted. As a consequence of the extensive interpretation of Art 34 TFEU by the Court in Dassonville, nearly every national regulation could be brought under judicial scrutiny because it potentially constituted a hindrance to trade. magic spell many consider Dassonville to be judicial activism beyond acceptable bounds, it must be seen in the context of the action or non-action of other European powers. Before the Dassonville decision Member States made little systematic run to remove non-tariff barriers (Graziana Luisi and Giuseppe Carbone, 1984). The unanimity requirement for Council decisions led to political quasi-inactivity in the 1960s. In response, the Commission issued in 1969 the Directive 70/5017 which gave measures with equivalent effect an imposing reading and listed 19 types of prohibited rules and practices. All these factors influenced the Court in winning quasi-legislative action, becoming itself the driving force for the building of a common market. The most im portant consequence of Dassonville and following cases was that the Court empowered the main interest group for removing trade barriers, the European traders and producers, to challenge national legislation. Therefore, the pressure was on the Member States to justify legislation contrary to Art 34 TFEU. limit by Keck The Courts case law constituted a great incentive to move towards a common market, but the fullness of the Dassonville-formula turned out to be a double-edged sword. The formula, which did not seem to provide limits to judicial review, was increasingly used as an instrument to firing any national legislation which stood in the way of free trade like the famous Sunday trading cases show and this led to an clog up of cases. Moreover, national courts clearly signaled their disagreement with the lack of sensible limits and guidelines by exactly not applying the formula. Finally, the Court faced heavy criticism in faculty member literature. These developments led to the important Keck decision in 1993. In this decision the Court limited the scope of judicial review regarding indistinctly applicable measures by adopting a differentiation suggested by academics (Bond van Adverteerders and, 1988). The differentiation was made between product requirements on the one hand, which regulate the composition, packaging or entry of a product, and certain selling requirements on the other, which only regulate the place, time and manner of selling products. According to the Court, product requirements are always considered to have equivalent effect to a quantitative restriction on trade, because they put a double burden on foreign products which already had to comply with their national requirements. In contrast, certain selling arrangements do not fall within the scope of Art 34 TFEU, provided that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States. This is because they do not prevent the retrieve of foreign goods to the market or impede the access of foreign goods more than they impede the access of domestic products. With Keck the Court moved on from its approach in Dassonville and decided that, whereas the producing State is responsible for rules on product requirements which have to be recognised by the importing State (which had already been decided in Cassis), the importing State has in general the sole regulatory competence regarding certain selling arrangements provided that they do not discriminate products from other Member States in law or in fact. With the decisions in Cassis and Keck and the creation of mandatory requirements, the Court established a complex modelling for the split in competence between the home State and the host State. Even though the Keck-decision was a good deal criticized, the court nevertheless continuously applie d the established distinction between product requirements and certain selling arrangements in later cases (Manfred Sger, 1991). It ruled, for example, that there was no breach of Art 34 TFEU in cases of time limitations to the sale of goods or the provision that certain products can be sold only by licensed retailers. Nevertheless, if the selling arrangement is either discriminatory (in fact) or capable of imposing a double burden33, the Court will uncovering a breach of Art 34 TFEU (Bond van Adverteerders and, 1988). Although the distinction has its shortcomings, especially because certain measures, such as advertisement regulations, cannot be put in one of the two categories, the Court has continually and successfully applied the Keck framework until today. However, in addition to the distinction between product requirements and certain selling arrangements, the rather elusive notion of market access and market access test has played a more and more prominent part in the academic discussion and in the Courts case law. Two recent cases Commission v. Italy (trailers) and Mickelsson and Roos36 have given again cause to argue that the Court has put the focus back on a purely nondiscriminatory market access approach. I will now first analyze the notion of market access and then address the question of whether a market access test fulfills a separate function beside the distinction between product requirements and certain selling arrangements. I jazz that the case law on market access can be traced back to the same principles that underlie the Keck-case law, being non-discrimination and mutual recognition, and that there is thus no need for a restriction test based on market access.References bailiwick 8/74, Procureur du Roi v. Benot and Gustave Dassonville, 1974 ECR 837Case 33/74, J.H.M. wagon train Binsbergen v. Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid, 1974 ECR 1299Case 74/76, Iannelli & Volpi SpA v. Ditta Paolo Meroni, 1977 ECR 557Case 2 79/80, Criminal proceedings against Alfred John Webb, 1981 ECR 3305Joined Cases 286/82 & 26/83, Graziana Luisi and Giuseppe Carbone v. Ministero del Tesoro, 1984 ECR 377Case 188/84, Commission v. France (woodworking), 1986 ECR 419Case 352/85, Bond van Adverteerders and others v. The Netherlands State, 1988 ECR 2085Case C-145/88, Torfaen Borough Council v. B & Q plc, 1989 ECR 3851Case C-288/89, Stichting Collectieve Antennevoorziening Gouda and others v.Commissariaat voor de Media, 1991 ECR I-4007Case C-76/90, Manfred Sger v. Dennemeyer & Co. Ltd, 1991 ECR I-4421Source document