Notesale: Turn your study into money

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EU problem Question



Tan-as-u-like Ltd, a manufacturer of UV sun-beds, has developed a new range of
hand held UV tanning devices
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However, the Swedish Government has recently proposed two new
pieces of legislation and Tan-as-u-like is concerned that these will impact on
their plans to export to Sweden
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The safety warning
should state “UV light can cause skin cancer”
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Advise Tan-as-u-like Ltd of the legality of the Swedish Government’s action
under EU law
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This question concerns the free movement of goods in Union law
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Consequently, Treaty on the Functioning of the European Union (TFEU)
governs the free movement of goods between Member States via Article 30
TFEU and Article 34 TFEU
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However, there are circumstances when a national measure which
breaches Article 34 TFEU may be justified
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Now, let us look into the first proposal to decide whether the suggested
legislation by Swedish Government is legal under the EU law
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In Commission v Italy, ‘goods’ are defined as products which can be
valued by money, and which are capable, as such, of forming the subject of
commercial transactions
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So far we have concerned, the first proposal is a measure which requires
all the hand held UV tanning devices carry a safety warning printed directly onto
the device as well as the packaging
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Thus, Tan-as-u-like Ltd has to consider whether the measure
constitutes to QR or MEQRs in order to examine the legality of Swedish
Government’s action
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Generally, QR are easily recognised
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The
examples are ban or quota which can be found in the case of R v Henn & Darby
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Then, we have to determine whether the proposed measure is a MEQR
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It was defined in Dassoville
as the Treaty fail to provide the scope of this part and here comes Dassoville
formula providing that all trading rules which are capable of hindering, directly
or indirectly, actually or potentially, intra-Union trade are to be considered as
MEQRs
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This was held to be a MEQR as it renders the
marketing of those products more difficult or more expensive to whom who
would need to adapt their packaging to comply with the requirement that was
not imposed by their own national legislation
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Hence,
we can say that the first proposal is prima facie in breach of Article 34
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Before we discuss this area, we have to understand that Article 36 has an
exhaustive list of justification and although the rule of reason has several
potential justifications, it only applied to indistinctly applicable measures
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Accordingly, distinctly applicable measures treat imported and domestic
products unequally by applying only to the imported product while indistinctly
applicable measures apply to both domestically and imported goods
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Therefore, Sweden can resort to both Article 36 TFEU and the rule of reason to
justify the breach of Article 34
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However, such prohibitions shall not constitute to a
means of arbitrary discrimination or a disguised restriction on trade between
Member States
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Moreover, the list
of the mandatory requirements has been extended by the ECJ nowadays
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As a result, by looking back to the first proposed measure, Swedish
Government could have argued that its measure falls within the ground of the

protection of health
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Among the lists of Article 36 TFEU, it can be said that the health and life
of humans rank foremost among the interests which is protected by the Article
itself
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In Greenham & Abel, the court held that Member States should identify
scientific research which supports the claims of the real health risk to public in
order to justify the breach of Article 34
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In addition, if Sweden found that the scientific data is somehow
uncertainties due to the difficulties to determine the precise effects, the
authorities can decide what degree of the protection of the health they intends
to assure whilst observing the principle of proportionality
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Next, we have to determine whether the measure is proportionate
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In Walter Rau v De Smeth, the court held that if a Member State has a
choice between various measures to attain the same objective it should choose
the least restrictive of the free movement of goods
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Therefore, we can presume that the proposed measure by Sweden would
appear to be a proportionate measure as it does not ban the import of hand
held UV devices but just require a safety warning printed onto the devices as
well as the packaging
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In Conegate, if you allowed such materials to sell domestically but u
restricted the same materials imported into your states, this will constitute to
an arbitrary discrimination and the measure will not justify under Article 36
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Hence, applying this to the proposed measure, it does not appears on the
facts that it constitutes to any arbitrary and disguised restriction on trade
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Here,
Tan-as-u-like Ltd can argue that currently they have sold the devices to other
Member States such as France and Italy and why should Sweden discourage
their sale
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Besides, it can also be argued that the measure is
imposed due to the specific needs of the national characteristics for example
Swedish might have a pale skin compared to other nationalities and so the risk
to Swedish is higher
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For this scenario, since the ground that can be justified covered
by Article 36, so we just discuss about that
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Next, let us discuss the second proposal which regards to the total ban on
the TV advertising of sun beds and tanning devices
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As we can see, this measure does not regulate the goods themselves
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Now, looking back to the second proposed measure, it concerns about an
advertising restriction
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So, in order to determine whether the selling arrangement is legal under
EU law, we have to consider that whether the measure satisfies the two Keck
conditions
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Accordingly, the selling arrangement must apply to all relevant traders
and secondly it must affect in the same manners, in law and in fact, the
marketing of domestic goods and imports
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A partial advertising restriction will normally satisfy the two Keck
conditions and therefore fall outside the scope of Article 34
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In Hunermund, it was held
that the prohibition of advertising popular medicines outside the premises was
a selling arrangement as it affected the sale of all such goods equally
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For example, people tends to purchase what they
know rather than what they do not know
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This can be
illustrated in Gourmet International Products
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This is because it is a partial
advertising restriction which applies to all traders and other advertising media
are still available for the product so consequently the two Keck conditions are
likely to be satisfied
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To conclude the two proposed legislation, it can be said that it is highly
likely that the Swedish Government’s action will be legal under EU law

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