Free Movement of Goods II Articles 34–36 TFEU Q&A
The Free Movement of Goods II Questions and Answers series offer the best preparation for tackling exam questions. This set of EU law notes looks at Free Movement of Goods II and the procedure to challenge blocking of imported goods and how to challenge this using Article 34 TFEU. The notes start with simple questions to provide a good understanding getting more complicated as they progress.
Problem Question One
ABC GmbH is a German company that manufactures ‘frozen yoghurt’ for sale to the public. It makes this from fresh milk which is fermented and then frozen. It is packaged in round plastic containers with a label stating that it is ‘frozen yoghurt’. It is then made available for sale. The whole process is in accordance with German law. ABC wishes to break into the UK market and put on sale its ‘frozen yoghurt’. It has been informed that as the manufacturing process does not conform to the strict UK law on the production of ‘yoghurt’ and ‘yoghurt’ based products it can be sold in UK only once the label on the container provides clear information, in English, that the ‘frozen yoghurt’ is in fact ‘deep-frozen fermented milk’. UK trading officers have discretion which they use to randomly check and inspect all food types on sale to UK consumers to ensure that they are in conformity with UK health and safety laws. It is likely that ABC’s product once available in the UK will be inspected by virtue of the fact that it will be a new product on sale in the UK. A charge is made for this inspection. ABC has been informed that it cannot describe in any advertising its product as ‘frozen yoghurt’ as there is a danger it will mislead the public about what it actually is.
Advise ABC GmbH on relevant EU law relating to free movement of goods.
Problem Question Two
DeVilliers is a French company which makes luxury meat pate, ‘foie gras’. It is made from the liver of a goose. DeVilliers force-feeds its geese so that the liver of the goose unnaturally expands. Despite increasing concerns about animal welfare issues relating to this process, foie gras sells well in France and other EU states. DeVilliers is hoping to sell its foie gras in the UK. However, it has experienced a number of difficulties. First its products are subject to a meat tax amounting to a ten per cent increase in the cost of the liver to the consumer. Many restaurants and meat retailers refuse to stock and sell foie gras. Recently a government minister has called for a consumer-led boycott of all foie gras on sale in the UK. A number of local authorities have refused to issue trading licenses to restaurants and meat retailers that are willing to sell foie gras. Finally UK law forbids any advertising of foie gras in the media.
DeVilliers understands that the UK is part of the single market and thus expects that its product should be promotable and on sale in the UK just as it is in France and other parts of the EU.
Advise DeVilliers how if at all, EU law relating to free movement of goods can overcome these difficulties.
Problem Question Three
Van Rij is a Dutch company trading in adult games and toys. It has been established in the Netherlands for many years and has a reputation for high quality products. It has never been refused a manufacturing license in the Netherlands. It has always passed inspections and has valid quality control certification from Dutch trading standards authorities.
It has experienced problems with importing some of its products into the UK. A consignment of its replica guns has been refused entry by customs authorities on the basis that they are too realistic and could be confused with real guns.
UK customs officials have seized a consignment of catapults for inspection. The reason given for this is to ensure that each and every item in the consignment conforms to the requirements of a 2009 UK Act passed to protect consumer interests. A fee is imposed for this inspection. The requirements of this 2009 Act apply in the same way and to the same extent to all such toys sold in the UK.
Van Rij has been informed that its computer game: ‘Mercenary’ will be certified under a 2010 Act as an adult game and as such suitable for people 18 years and older. This means that it can only be made for sale through registered retailers licensed to sell adult content computer games.
Advise Van Rij of his rights, if any, under EU law relating to free movement of goods.
You are to assume that the laws referred to in this scenario are real.
Problem Question Four
Presto is an Italian mail-order pharmacy that supplies prescription medicines to customers all over the EU. Presto launches an advertising campaign for a “Grand Prize Draw” in which the main prize is a voucher for an electric bicycle worth EUR 2,500 and the second to tenth prizes are electric toothbrushes. A condition for participating in the prize draw is the submission of a medical prescription. By decision of 31 January 2021, the Medicinal Product Control (MPC) Section of the German Minister of Health banned Presto from the dissemination of any advertising related to that promotion. German law prohibits any form of the promotion of the sale of pharmaceuticals.
As Germany is one of its largest markets, Presto seeks your advice on whether the decision of the MPC can be considered a violation of EU law.
Problem Question Five
After half of the high school students failed the national exam on the Slovenian language and literature, the Ministry of Education of Slovenia issued several decrees to remedy the situation. According to:
Decree 1/2023, books in foreign languages must be bilingual, and provide a translation into Slovenian of all the text.
Decree 2/2023, all books sold in Slovenia need to be authorized by the newly established Slovenian Language Authority (SLA) and bear the SLA’s official stamp certifying that they are written in or translated into proper Slovenian.
The SLA does not have deadlines for decision-making, and their decisions are not subject to judicial review.
You are working for the Legal Service of the European Commission and your task is to assess whether Decrees 1/2023 and 2/2023 are in breach of internal market law. What are your arguments?
