One of the main objectives of the EEC at its inception was the Free Movement of Goods, a prerequisite in the achievement of an Internal Market, the raison d'être of the EU. The Article 28 EC prohibits Quantitative Restrictions on imports and all measures having equivalent effect to a Quantitative Restriction. The facts state that the French Government has passed legislation that requires all goat's cheese (both domestic and foreign) to be packaged in triangular containers. We can ascertain that these facts concern an import and therefore a measure taken by the Member State which comes under the remit of Article 28. Moreover, there are no issues on whether the French Government is a state body or that the facts concern intra-community trade. In the same vein, the facts do not indicate that the measure is a Quantitative Restriction. Therefore, we turn to the ascertainment of measures having equivalent effect to a Quantitative Restriction.
[...] Consequently, on the premise of the fact that: the French legislation does not satisfy any of the Cassis mandatory requirements; the French legislation was not proportionate to the aim in view as the objective could have been achieved by other means; and, therefore, has a protective effect, we would advise the French Government on the authority of Cassis and Walter Rau that there exists no justification to their breach of Article 28 EC. We now turn to the principle of mutual recognition. This provides that there is no valid reason why goods which have been lawfully produced in one member state should not be introduced into another member state without restrictions. This is significant in light of the policy objective of market integration in that it truly encourages the free movement of goods whilst at the same time encouraging cultural diversity. [...]
[...] In Walter Rau Lebensmittelwerke v De Smedt PVBA[5] the Court of Justice held that a Belgian Law requiring margarine to be sold in cube shaped packages was a breach of Article 28 as the imported margarine had to be repackaged before being sold in Belgium. We would therefore advise the French Government on the authority of the Court of Justice's judgement in Walter Rau that their exists in the legislation requiring all goat's cheese sold in France to be packaged in triangular containers an indistinctly applicable measure having equivalent effect to a Quantitative Restriction which is, consequently, in breach of Article 28 EC. We must now advise the French Government as to whether they can justify their breach of Article 28 EC. [...]
[...] [emphasis added] In application to the facts, we can see that the 1969 Directive makes specific reference to measures which deal with size. Moreover, the Directive will apply in this case if it of proportion to their purpose” and same objective can be attained by other means which are less of a hindrance to trade”. Bearing in mind that the 1969 Directive is not in force, we would be of the opinion that the French legislation would appear to be an indistinctly applicable measure. [...]
[...] We can therefore ascertain that these facts concern an import and therefore a measure taken by the Member State that comes under the remit of Article 28. Moreover, there are no issues on whether the French Government is a state body or that the facts concern intra-community trade. In the same vein, the facts do not indicate that the measure is a Quantitative Restriction. Therefore, we turn to the ascertainment of a measure having equivalent effect to a Quantitative Restriction. [...]
[...] The facts state that the French Government has passed legislation that prohibits all French cheese shops from opening between 8pm and 9am. In the first instance, we must determine on the premise of the Dassonville formula whether this is a measure having equivalent effect. Much like the first measure, we would ascertain that this measure is potentially capable of indirectly hindering intra-community trade and, consequently, we would advise the French Government that there appears to be a measure having equivalent effect to a Quantitative Restriction which is breach of Art In the landmark case of Criminal Proceedings against Keck and Mithouard[11] the Court of Justice considered it necessary to “re-examine and clarify”[12] its case law on Article 28. [...]
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