European Law Assessment - 1623986

Question 1

Introduction – 150 wds

The issues Bubbly plc faces are related to the free movement of goods which
is a right protected under the TFEU (Treaty on the Functioning of the European
Union). We will look at the legality of Spain’s decisions on the regulation of
sangria-style alcoholic drinks and advise Bubbly plc on whether theu can
challenge any of these three provisions.
Spain is a Member State(MS) of the European Union (EU) meaning its national
laws cannot be conflicting with those of the EU as per the principle of
supremacy1 established in Xyear. If that was to happen, a citizen of any MS
has the right to challenge them under the principle of direct effect 2 and, long as
there is enough proof, may be reversed by the EC COURTS via MANDATE?3.

Provision 1 – Quantity Restriction – 600 wds

The first provision places a limit on fruit, vegetables or cereals sold in Sweden
which have a certain amount of the pesticide Zappicide in them. This is a
restriction on quantity, which could be a breach of Art. 30 4 as it states that
“quantitative restrictions on imports and all measures having equivalent effect
are prohibited”5 and Art. 34 TFEU: “quantitative restrictions on imports and all
measures having equivalent effect shall be prohibited between Member
States.”
The CJEU (Court of Justice of the European Union) defines ‘goods’ as
“products which can be valued in money and which are capable, as such, of
forming the subject of commercial transactions,” 6

1
L Kramer, Casebook on EU Environmental Law (Bloomsbury 2002)
2
EXPLAIN
3
TYPE OF MANDATE AND CASES THIS HAS BEEN SEEN IN (REVERSED)
4
Consolidated version of the Treaty on the Functioning of the European Union
Art.30
5
Ibid.
6
A Cuyvers, Free Movement of Goods in the EU (Leiden Boston 2017) Ch. 10
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As per Commission v Italy,7 the cereals, vegetables and fruits which Sweden is
placing limitations on are classified as ‘goods’. Having established this, a
limitation can either be a QR (Quantitative Restriction) or a MEQR (Measure
Equivalent to Qualitative Restriction). Gedo v Ente Nazionale Risi 8 defines a
QR as a “measure that amounts to a total or partial restrain of imports, exports
or goods in transit,”9 and the case of R v Henn & Darby10 further confirms this.
As Sweden is not banning the import of the goods themselves, but rather a
characteristic in them in the form of a specific pesticide’s content, this does not
fit our scenario. An MEQR is define in Dassonville11 “any formula which
hinders, directly or indirectly, actually or potentially, intra-Union trade,” 12 and
this is further confirmed in Walter Rau v De Smed,13 where restriction on
margarine shape was held to be an MEQR as it renders production more
expensive.

Therefore this is an MEQR, as anyone wishing to Sangria-style drinks into

SPain must comply with these requirements on amount and bottle material.
This was not imposed by legislation in their country of origin and which leads to
a cost increase, therefore a prima facie breach of the TFEU.

It would be possible to justify a breach of Art. 34 under Art. 36 TFEU, which

contains an exhaustive list of justifications. 14 These, however, do not apply as
this provision is indistinctly applicable, as it applies to Sangria-style drinks;
irrespective of their origin. It would fall under distinctive had it “ treated
imported and domestic products unequally by applying only to the imported

7
Case C-110/05 Commission of the European Communities v Italian Republic
ECR I-2353
8
Case 2-73 Riseria Luigi Geddo v Ente Nazionale Risi
9
Ibid.
10
R v Henn and Darby [1978] 3 All ER 1190
11
Case 8/74 Procureur du Roi contra Benoît y Gustave Dassonville [1974]
ECR 837
12
Ibid.
13
Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PVBA [1983] ECR
3961
14
Must either “satisfy mandatory requirements regarding fiscal supervision,
protection of public health, fairness of commercial transactions or consumer
defence.”
European Law Assessment - 1623986

product while indistinctly applicable measures apply to both domestic and

imported goods.”15
In other words, in order to justify this breach, Sweden would have to show that
it is necessary in order to attain one or more of the Art. 36 mandatory and that
this conforms with the principle of proportionality- this is not the case, so this
provision can be successfully challenged by Roberto.

Provision 2 – Inspection Charges – 250 wds

The second issue consists of charging a fee on a compulsory inspection of

chemicals present in goods. This could be a breach of Art. 30 TFEU,16 which
covers customs duties on imports and exports. As set out in Biologische
Producten 272/80,17 if testing was carried out in the exporting state (Italy), and
the results of these tests where made available to the importing state
(Sweden), any further checks would be unnecessary and would be in breach of
EU law.18

It could be argued in favour of the Swedish government’s decision that high

levels of this pesticide are a threat to public health, which could fall under one
of the mandatory requirements under Art. 36, as seen in Cassis de Dijon,19
however if the testing is unlawful then a charge should not take place at all.
This is confirmed in Commission v Belgium20in terms of a customs duty.
Therefore as per Biologische, if the testing turns out to be unlawful, there
should be no argument on the charge itself. This constitutes a breach.

Provision 3 – Ban on advertising - 350 wds

15
Consolidated version of the Treaty on the Functioning of the European
Union Art. 34
16
Ibid. Art. 30
17
Case 272/80 Frans-Nederlandse Maatschappij voor Biologische
Producten [1981] ECR 3277 14
18
Ibid.
19
Case C-120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein
[1979] ECR I-1979
20
Case C-383/10  Commission v Belgium [2011] ECR I-4105
European Law Assessment - 1623986

A ban on all advertising or sales promotion of any produce which contains any
level of Zappicide residue (even if this is within the permitted levels), could be
breaching Art. 34 of the TFEU, as a restriction on advertising would fall under a
‘selling arrangement’, a term with abroad definition which is any “rules relating
to the market circumstances in which the goods are sold” It concerns where,
how, when and by whom they were sold.” 21 In Keck,22 it was ruled that
application to products from another MS of national provisions restricting or
prohibiting certain selling arrangements is not such as to hinder directly or
indirectly trade between MS. This must fall within the judgement in Dassonville,
provided al lproducts (domestic and from other states) are treated equally.
There are two types of selling arrangement: static and dynamic. The latter
applies here, as a dynamic selling arrangement includes ways in which a
manufacturer chooses to market a specific product. 23 Another case, Leclerc
Siplec,24 set out that any measure which directly and substantially impedes
access to the market violates Art. 34. 25 This is confirmed in De Agostini,26 a
case where television advertising aimed at children younger than 12 was
banned.
This provision is unlawful as banning advertising and sales promotion on some
goods-specifically fruit, vegetables or cereals with an amount of Zappicide
superior to that allowed in Italy- results in differential treatment to domestic
fruit, vegetables and cereals coming from other MS which do not suffer
restrictions on their pesticide content. This goes against the principle of free
movement of goods between MS, and therefore is a breach of EU law which
can be challenged.

Conclusion – 100 wds

21
Consolidated Version of the Treaty on the Functioning of the European
Union Art. 34
22
Case C-267/91 Bernard Keck and Daniel Mithouard [1993] ECR I-6097
23
P Craig and G De burca, EU Law: Text, Cases, and Materials (OUP
Oxford 1998)
24
Case C-412/93 Société d'Importation Edouard Leclerc-Siplec v. TF1
Publicité SA and M6 Publicité SA
25
Ibid.
26
Case C-34/95 Konsumentombudsmannen v De Agostini [1997] ECR I-7319
European Law Assessment - 1623986

As Bubbly plc.’s lawyer I advise that all three provisions imposed by the Spanish
government may and should be challenged; the first via DE, (as it placed an
unlawful MEQR on the import goods) the second breaches Art.30 by imposing
unlawful charges and the third via IE (due to its placing an unlawful ban on
advertising). I will go further and say that actions in this nature go not only
against the EU’s codified laws but against its main principles of single market
without obstacles.27 In x’s words: “ “.

principl free movement of goods is one of the main principles of the EU.

27
https://ec.europa.eu/growth/single-market_en