Matteo Carraro, 18/12/2009, Tutor: Dr N Countouris.

A new political party, the Save Our Souls party, wins the UK general election in
November 2008, on the basis of a manifesto aimed at improving public health, in
particular, by combating binge drinking, smoking and obesity caused by overconsumption of fatty food. The new government introduces the following legislative
measures:
a) a ban on the manufacture or import of cigarette vending machines;
b) a restriction on the sale of cigarettes and tobacco products to premises licensed for
that purpose;
c) restrictions on the advertising of alcoholic drinks. Alcoholic drinks can be advertised
on television, but only after 9pm in order to reduce the likelihood that such
advertisements will be seen by younger viewers;
d) a requirement that all ready-made meals must have a health warning fixed clearly to
the packaging; the warning must be printed in English and must specify the fat
content of the meal.
Advise the European Commission as to the compatibility of the UK measures with
European Community law.

For the SOS party to fulfil the electoral promises outlined above, it will be necessary to contrast
them against the criteria set in art.28 EC (prohibiting restrictions of the free movement of goods)
and art.30 EC (qualifying such prohibition).
The crux will be establishing whether measures a,b,c,d are caught under art.28s scope or,
alternatively, if UKs motivations (inspired by public health) will suffice to shield them. The first
step in this direction must be determining which measure can be categorised as a quantitative
restriction or measure equivalent to quantitative restriction (MEQR) - based on this dichotomy, one
can then proceed to identify where can the UK draw its defences from.

A)&B)
The incipit of art.28 is clear in its implications: no Member State (MS) can restrict the quantity of
imports from other MSs. The corresponding definition of quantitative restriction put forward by
the European Court of Justice (ECJ) in Geddo is also unequivocal: measures which amount to
total/partial restraint of, according to the circumstances, imports, exports or goods in transit.
Out of the measures scrutinised here, A) and B) precisely reflect what, in Import of Lamb case
(Commission v France) and Import of Potatoes case (Commission v UK), were held to be the most
obvious examples of quantitative restrictions: vis--vis, complete bans or quotas restricting the
import or export of a given product by amount or by value.
Following art.30, A) and B) would be approached by the ECJ with a two-fold scrutiny. Following
the case involving the UK ban of poultry imports in 1982, the first consideration would be whether
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public health is objectively the real motivating drive behind these proposal, or merely a concealed
attempt to protect domestic products. As the facts are illustrated in the title-question, it can only be
assumed that the UK is genuinely seeking to protect the health of its nationals.
The second step in considering health-related measures, is exemplified by the Sandoz decision
involving a Dutch ban on muesli-bar imports on the controversial grounds that their consumption
could prove harmful. Whilst the very facts of the case might not be strictly relevant to the
circumstances analysed here (in that smoking is uncontroversially detrimental to the human body),
the Court identifies that if on the one hand a MS could decide what degree of protection should be
employed, on the other hand it should always bear in mind the requirements of free movement of
goods (the proportionality principle).
A Member state, the court continued, may not ban imports but might subject them for example to
extra tests (even if already tested in exporting MS). This particular contingency clearly cannot be
administered with tobacco and cigarettes, however its ratio is sufficient to make a distinction
between a) and b) the former being unreasonably limiting the free movement of goods with such
an excessive imposition as a ban: as the ECJ held in Sandoz proportionality underlies the last
sentence of art.30 requiring that the power of MSs to prohibit imports should be restricted to what is
necessary to attain the legitimate aim of protecting public health.
The only caveat to the proportionality principle could be that Such assessment is difficult when no
possibility of foreseeing quantities consumed and degree of harm(Sandoz): the damage tobacco is
responsible for, is however well-known. It is possible therefore to objectively conclude that, unlike
B), measure A) is not necessary to pursue the best interest of national health.

C)
In Dassonville, one year after Geddo, the Court provided an amplified formula of restriction
where the focus shifted on the effect of the measure in question1: discriminatory intent, in fact, is
not required for indistinctly applicable rules (MEQR), as delineated by art.3 of Directive 70/50.
What the UK must prove here, is that the proposed measures can fulfil the rule of reason
requirement of the Dassonville-formula: in the words of the court the measures should be
reasonable and should not act as hindrance to trade between Member States.
The milestone case Cassis de Dijon offers a scenario comparable to the one analysed here: just like
the SOS party, Germany was allegedly motivated by an ambition to avoid proliferation of
alcoholic beverages and to that end a law requiring fruit liqueurs to have a minimum 25% alcohol

All trading rules enacted by MSs capable of hindering directly/indirectly, actually/potentially) intra-EC
trade are considered MEQR
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was imposed. The measure, while not discriminatory, clearly precluded access to the market by
French liqueur (characterised by lower alcohol percentages); similarly, proposal neither C) or D)
forwarded by the SOS party to protect the public health, are overtly discriminatory (in terms of bans
or quotas) towards imported alcohol or food despite their inevitable effect of limiting imported (as
well as domestic) products.
The ECJ in Cassis held that in absence of common rules relating to marketing of alcohol MSs
could regulate this matter and Obstacles emerging from disparities between national laws in
marketing of alcohol must be accepted so far as they are necessary to the effectiveness of fiscal
supervision, public health, fairness of commercial transactions and defence of the consumer.
The Court unveiled the original discriminatory purpose of those measures since, as far as the public
health argument went, German nationals could still buy other drinks just as or more alcoholic; as for
the other possible exceptions proposed, the ECJ introduced the mutual recognition argument: the
assumption that once the product is lawfully marketed in one MS, it should be admitted into other
MSs without further qualifications necessary.
Nonetheless, despite the obvious bona fide of the SOS party as well as the universality of the
measures implications on importers and domestic traders alike, Cassis is no longer a sufficient
legal base to categorically strike measure C) out of art.28s scope, but should be referred to when
seeking additional MEQR defences not specified in art.30.

Following the case of Keck, a radical (arguably too radical) crusade to abate the exponential
reliance by traders on art.28, the Court overturned the pronouncement in Cassis.
Such controversial judgement is interpreted so that rules relating to the goods themselves (dualburden rules) are within art.28, while those concerning selling arrangements impose an equal
burden to all traders and are therefore outside the scope of art.28.
This dichotomy, in relation to the UK measure in question, does not present an outcome
diametrically opposed to the Cassis scenario since restriction on the advertising of a product
would fall under the selling arrangement category, outside art.28, hence falling short of the
definition of MEQR.

Let us now turn to how the post-Keck jurisprudence may apply. The Court flexibly produced a
range of restrictions to the exclusion of selling arrangements from art.28: one such exception
crystallises if the measure (advertising restrictions in this case) has different impact for domestic
traders and importers. DeAgostini deals with limitations very similar to advertising restrictions
proposed by the UK in C): the ECJ, following the Keck requirement that national measures should
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be applied universally to domestic traders and importers, holds that it cannot be excluded that a
ban on promotion of a product lawfully sold [in the MS in question] might have greater impact on
products from other MS.
In Gourmet the Court was set to demonstrate how such limitations on advertisement present
discriminatory effects. Having quoted Keck and after applying DeAgostini, the ECJ held that
prohibition of all advertisements liable to impede access to the market by imported products more
than it impedes access by domestic products w/ which consumers are more familiar.
Applying this exception to UKs measure C), would appear to have the opposite effect than it would
have under Cassis or under a prima facie application of Keck: the advertising restriction proposed
by the SOS party applies universally (as required in DeAgostini) but is subject to an indirect
discrimination, like the one described in Gourmet. thus, as a discriminatory provision, it falls
within art.28.
Nonetheless measure C) remains an indistinctly applicable MEQR, and can be therefore subjected
to both art.30 protection, as well as Cassis mandatory requirements (which, as noted above, do
include public health). It was held in Commission v France that it is undeniable that advertising
acts as an encouragement to consumption and is therefore relevant to public health.
In other words, by being motivated by public health concerns, the SOS party can provide a valid
justification to shield its restriction on advertising from art.28.

D)
Unlike provision C), imposing health warnings on products could be classified as interference by
MSs on the product itself therefore under Keck D) is a MEQR caught by art.28. Unlike C),
moreover, the proposed labelling imposition applies equally to domestic and imported products and
can therefore rely on both art.30 and Cassis mandatory requirements to elude art.28. However the
SOS party would refer to the latter category, since consumer protection s not included in art.30.
The leading case is Commission v Germany (Bier): whilst there is no factual adherence between this
case and the SOS proposal, the rationale followed by the ECJ can be instructive.
The court proceeded in a two-stage approach. First it is necessary to determine whether imposing
such labelling requirements is in fact effective in practice: the ECJ referred to the ephemeral tastes
of consumers, their conception of certain products and how the common market represents the main
drive behind such transitions. In the case of fat foods, on the other hand, one is not dealing with
subjective tastes but rather with enduring dietary facts. The warning function purported by such
labels would not therefore be influenced by changing consumer trends.

Matteo Carraro, 18/12/2009, Tutor: Dr N Countouris.

The second stage of the Courts scrutiny involved considering whether the same objective could be
achieved with less restrictive means. So for example, rather than imposing what concoction of
elements can be sold as beer (as in Commission v Germany itself), the Court found labelling to be
a more suitable solution, less traumatic in terms of EC art.2 objectives.
By having proposed labelling in the first pace as measure to combat obesity at tender age, SOS
party enjoys the Courts express endorsement. In addition to this, in Fietje held that labelling could
be justified even if it implies necessary alteration of the labels of imported goods. However such
protection is not justifiable if the details given in the original labels contained the same
information as required by State of import, and that info was just as capable of being understood by
consumers.
The implications of the latter point is that the SOS party cannot impose labels to be in English,
unless the MS exporting the ready-meals lacks similar measures or that such measures are not
understandable by the English-speaking population.

From what has been determined thus far, propositions B),C)&D) do not correspond to a art.28
MEQR. The main reason is that they are motivated by an unambiguous attempt to protect UK
consumers from the abuse of tobacco, alcohol and fat food: pursuing this objective in a
proportionate way, without trampling on the Communitys raison detre (promoting the common
market), ensures that these three measure can claim art.30 protection.
The latter quality (proportionality) is precisely what lacks in measure A): the Court has been clear
throughout its case law that an outright ban is unacceptable and cannot enjoy art.30 protection,
however noble the inspiration behind it may be.
In conclusion, the UK may implement the indicated measures since, as the ECJ repeatedly stressed
it is for the Member States to decide on the degree of protection which they wish to afford to public
health and on the way in which that protection is to be achieved (Aragonesa).