free movement of goods

This above situation revolves around the law of free movement of goods.
Under this law, both

fiscal and non-fiscal barriers exist, Article 28-30 TFEU involves fiscal barriers while Art.34-36
TFEU involves non-fiscal barriers. The product in question is some food products (canape,
sausage roll and plant puffs) so as they could be a part of commercial transaction therefore they
will likely fall under the definition of goods (Commission v Italy) [Art treasures].
Since the goods are being imported from Sweden, Article 34 TFEU will be relevant which states
that any measure which results in a quantitative restriction (QR) or measures having equivalent
effect (MEQR) will infringe this article. In our case, French legislation imposed a restriction on
using words related with meat or dairy products so this could be regarded as state measures, as
it has state involvement (Commission v Ireland) We now have to determine whether the state
measure falls under OR or MEQR. A OR is defined as a total or partial ban on trade (quotas)
whereas MEQR was widely defined in the case of Dassonville as a measure which directly,
indirectly, actually and potentially hinder intra community trade. In this case, restrictions from
France could be regarded as MEQR as they have not completely banned the products, rather
they just objected to the packaging and advertisements, instead of causing a hindrance by not
allowing such products in their country.
Since we have determined that the measure is an MEQRm we need to establish whether it is
distinctly applicable (DA) or indistinctly applicable (IDA). DA is a measure imposed only on
imported goods (Evan case) whereas IDA is one that applies on both local and foreign goods
but it has a great impact on foreign goods (Walter Rau). The ban on use of words related to
meat and dairy products does not solely forbid imported goods, so it is presumed that it applies
to all products whether imported or local, so such a measure could be IDA.
IDA measures were further distinguished between product requirement and selling
arrangements therefore we now need to determine which one is applicable to our scenario.
Product requirements indicate certain changes made to the object whether it be changing in
packaging and contents etc, whilst selling arrangements refer to how, when and where a
particular product is sold (Keck and mouthand). As in this situation, a ban is to change the name
of a product thereby changing packaging within the ambit of product requirement. Further
restriction is also imposed on advertisement so this could be a selling arrangement.
Product requirement directly infringes Art.34 while selling arrangements don’t fall under the
ambit of this article. However, there is an exception to this given by Keck case which is used to
assess whether the measure has impeded the access to the market (Commission v Italy), it
would be assessed whether the measure imposes a heavier burden on foreign goods or not. If
yes then it will infringe Art.34 In our case, readvertisement is indeed a heavier burden being
placed on foreign goods in the country. Hindering advertisement would mean that local such
goofs will be well-known in the market and not the foreign therefore this clearly impedes the
access to the market, so it infringes Art.34.
As infringement is proved, there are certain justifications available under Article 36 TFEU along
with Mandatory requirements under Cassis Dijon which are applicable to IDA’s and hence
applicable in our case. Here justification applicable would be consumer protection as it is to
prevent confusion whether these particular products contain meat content or not. This total ban
on advertisement and repackaging would not be justified at any cost (De Agostini). Therefore
we need to identify whether the measures adopted by France are proportionate. In order to
assess the proportionality, we might have to look whether the measure adopted by the state is
necessary, appropriate and balancing interest. In fact, the ban on using the word meat or dairy
on the food did not contain meat or dairy as it might lead consumers to believe that products
containing meat or dairy can be proportionate, as it not prove scientifically and hence lead to
confusion. Therefore, by using common sense it could be said that the same effect would be
achieved by changing the label of the products and by sticking a sticker on the product as a
caution. Hence the restriction imposed by France is not proportionate.
In conclusion, French legislation imposed a total ban on the use of words like meat or dairy on
packaging and advertisement is regarded as MEQR which violates Article 34 TFEU, further
might not be justified under Article 36 TFEU and Mandatory requirement, further as it is not
proportionate so the restriction imposed by French legislation might be unlawful.

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free movement of goods

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This above situation revolves around the law of free movement of goods.

Under this law, both

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