Free Movement of Goods (Problem Questions)

General Rules:

(A) Refer to the flowchart for the basic structure in answering a FMG question.
(B) Consider using the following formula for easy to understand and straight to the point application: “In [Case], court held that [Principle]. On the facts,
[Apply the Principle to the Facts]. Therefore, [Conclusion].” Remember to apply the law!
(C) If you have a few grounds of derogation to raise, please complete the discussion of proportionality of each of the relevant ground before you proceed to
discuss the next ground of derogation.
(D) Proportionality test need to be discussed in greater details. You need to ask yourself 3 proportionality questions, in the context of the answer - see 2010
ZB Q4 demonstration. When you answer these 3 questions, the answer is not a “yes” or “no” only. For instance, if you think the measure is not suitable,
then you should explain why you thought so; if you think there is a better way to achieve that ground of derogation, then state what is this alternative
way to achieve the same objective with a less intrusive or proportionate measure.
(E) Even when answering problem question, you can try to fit in evidence of further reading, as follows:
Whilst Keck has its own “fair share of critics and admirers” and its validity has been questioned since Mickelsson and Roos, Gormley has
nevertheless confirmed that Keck survives after these cases.
(F) If there is a possibility that Keck may apply, then you should consider the test of Keck first. If it cannot be satisfied, then your discussion can progress
smoothly to Article 34 breach, and consider the relevant applications.

No. Question Answer Guide

1. 2010 ZB Q4

(a) A consignment of cows from Hungary arrives at the border of France.

There is an overproduction of cows in France and the French
government has imposed restrictions on the breeding of cows,
requiring all locals who breed more than the quota, as well as all
importers of cows, to pay a 5% levy on the production cost of their
cows into a French fund for the improvement of the national breeds of
cows.
(b) There have been reports of a possible outbreak in Hungary of BSE
disease which is often fatal to cows, although it does not affect the
beef obtained from such cows, which is legally accepted in the EU.
However, the French authorities want to play it safe, particularly in
view of their own excess production, and require a certificate from all
 importers certifying that their cows are free of BSE.
(c) Before the levy is paid and the certificate obtained, the consignment is
held up for several days at the border, and by the time the lorry arrives
at the slaughterhouse several of the cows have died and others are in
such a bad state that their meat is also no longer fit for human
consumption, the Hungarian beef is sold at a very competitive price to
a large French supermarket, which advertises the arrival of the
consignment as ‘cheap, tasty beef from Hungary, from free-range
cows”. The next day the meat is confiscated by government inspectors
because they believe that the price cannot possible cover the cost of
production and slaughtering, and selling below this price is illegal in
France.

Advise the Hungarian importer as to his rights and remedies under the EU
law.

2. 2011 ZB Q4

Piet is a long-standing manufacturer of binoculars in Holland. The

binoculars are small but particularly powerful and are used a great deal for
bird watching. Piet sees a great marketing opportunity in Europe and
decides to try out the UK as the potentially largest market. He has updated
his technology in binoculars production. He has obtained all the necessary
certificates in Holland which approve both his methods of manufacture as
being environmentally friendly, and also approve the quality of the finished
product. At the beginning of March, Piet despatches a consignment of
1,000 pairs of binoculars to the UK. He has an agreement with several
large electrical stores to display and sell these binoculars as a ‘special
offer’. This means that, taking into account the extra transport costs, he
 will make only a very small profit, but he is interested in selling many more
later. Time is of the essence as he wants to sell the binoculars before the
spring starts, which is the prime season for bird watching. When the
consignment arrives in the UK, customs inspectors seize the binoculars
and indicate that they need to be properly tested. There has been a lot of
trouble with this sort of small, powerful binoculars imported from the Far
East, and there have been rumours of the lenses causing spontaneous
fires in grassland. These tests take a long time as specialists are needed
to carry out the testing. Piet is charged £100 specialist storage per day
and the tests will cost £200 an hour of which the UK authorities will pay
half. All this takes approximately four weeks. The tests prove to be
satisfactory and the binoculars finally arrive at their retail destination at the
beginning of April. Electrical store A displays the glasses at the back of the
shop, advertising their superior quality, and their relatively low cost. Sales
do not go well. Electrical store B wants to go one better and advertises the
binoculars as follows: ‘Uniquely powerful binoculars, long use, ideal for
birdwatching, one consignment only sold at especially low prices, below
their cost of manufacture’. Local Council inspectors check both electrical
stores and confiscate the binoculars in supermarket B, as by law in the UK
products may not be sold below cost price. Advise Piet as to any breaches
of EU law which have occurred. What steps can Piet take to obtain a
remedy for any breaches?

3. 2011 ZB Q5 (a)

Trendy & Co produce a drink called Funz, which is aimed at the youth
market. Funz is low in alcohol and sugar, but contains harmless sugar
substitutes and products to give it some fizz. Trendy & Co have had a
rapidly expanding market in the UK, thanks to extensive advertising and
attractive pricing, and now wish to extend their sales to other EU
countries. They target Germany as the largest potential market in the EU.
The following rules apply in Germany: a) imported alcoholic drinks must
 carry a label clearly stating their country of origin and their alcohol content;
b) all drinks sold in Germany must comply with Germany’s purity rules
prohibiting most additives in alcoholic drinks; c) imported alcoholic drinks
must be seized at the border if they appear to be targeted at younger
drinkers. German drink manufacturers are required to place labels on their
goods saying they should not be consumed by the young; d) no
advertising of alcoholic drinks is permitted anywhere in Germany. Advise
Trendy & Co on whether they may challenge these rules.

4. 2013 ZB Q1

Litter & Co. is a UK company producing chocolate biscuits called

“ChocoCrunch”. It is about to market its products across the EU and seeks
your advice as to the compatibility with EU law, assuming the following
facts:

(i) That advertisement of junk-food is soon to be banned in Italy and TV

junk-food advertising is going to be banned between noon and 9.30pm
week days and all weekend in Germany.
(ii) It has introduced a “Sport for Schools” scheme which is clearly
advertised on the ChocoCrunch wrappers. Under the scheme, for
every 1,000 ChocoCrunch wrappers returned to them, the company
will provide schools with a piece of sporting equipment. Poland does
not allow for the provision of ‘gifts’ upon purchase, including token
collection schemes, nor does it allow for junk-food to be associated in
any way with healthy activities, including sports.

5. 2014 ZB Q5

Biborova is a Latvian company producing vodka, well known in particular

for Bibotal, a line of ready-made vodka cocktails that it markets in 1 litre
plastic bottles. Bibotal is mainly destined to home consumption, and is not
distributed to pubs, bars or restaurants. In May 2014 Biborova decides to
 enter the Polish market with Bibotal, but encounters several difficulties.
First, the Intoxicating Substances Law of 2003 provides that intoxicating
substances no matter how big the alcohol concentration can only be
marketed in glass bottles, for reasons of consumer protection and public
health. Biborova will thus incur high packaging costs in order to be able to
sell its products on the Polish market. Second, according to the
Advertisement Law of 2004, alcohol can only be advertised in pubs, bars
and restaurants, as well as in specialized gastronomic magazines.
Biborova fears that this will seriously diminish its chances to be known on
the Polish market. Biborova’s advisors think that the Intoxicating
Substances Law of 2003 and the Advertisement Law of 2004 are contrary
to European law, but come to you for a second opinion.

6. 2015 ZB Q1 (a)

The Estonian Child Protection Act (fictitious) introduces a system of prior

authorisation for products that might have been manufactured using child
labour. The preamble to the Act makes reference to child protection, a
cherished value of the Estonian Constitution. The Child Protection Council
(CPC), a governmental agency, is responsible for granting prior
authorisations and is required to respond to applications within three
months of receiving an application. The CPC is composed of delegates
from the Ministries of Labour and Education and representatives from the
business community. Each year the CPC publishes an indicative list of
products for which prior authorisation needs to be sought, regardless of
whether the product is already in free circulation within the European
Union. Taste-cha is a business with several cafés in Estonia. They import,
and sell in their cafés, a special tea blend called ‘Amber Brew’. The tea is
produced in China but Taste-cha buy it from a supplier in Poland. Taste-
cha is prosecuted because they are selling ‘Amber Brew’ without
authorisation from the CPC and are facing imprisonment. In court, Taste-
cha argue that the system of prior authorisation infringes both free
 movement of goods and the freedom to provide services. The Estonian
government urges the court to reject these claims, as any potential
restrictions to economic freedoms are justified by the imperative to protect
fundamental rights. The case reaches the EUCJ for a preliminary ruling.
You are the Advocate General. Write your Opinion for the Court.

7. 2016 ZB Q2 (i)

Zenfit has been lawfully producing herbal teas in the UK for some time.
The success of its sales in the UK has encouraged Zenfit to try to export
its products to other EU Member States. However, it has encountered
some difficulties. In France, legislation requires that any information on the
packaging of herbal teas must be in French. In Spain, the national agency
for food and health has recently classified all herbal teas as ‘medicinal
products’ which makes them subject to a specific authorisation by the
agency. Advise Zenfit on the compatibility of the French and Spanish
measures with EU law.

8. 2017 ZB Q4

Parkinson Support Hungary (PSH) is a Hungarian organisation helping

patients suffering from Parkinson’s disease and their families. In 2015,
PSH agreed a bonus system with Pharma Online, an Italian mail-order
pharmacy. In accordance with the bonus system, various bonuses would
be provided to members of PSH when purchasing from Pharma Online
prescription-only Parkinson’s disease medication. The Association of
Hungarian Chemists challenged the bonus system in front of the national
court. They argued that the bonus system infringed Hungarian Law which
provides that prescription only medication can only be sold at prices fixed
by the Ministry of Health. The Association of Hungarian Chemists points
out that Hungarian Law is an important legal instrument seeking to ensure
that mail-order pharmacies do not engage in aggressive price competition
 which would push traditional pharmacies out of the market, especially in
rural areas. The Hungarian Court is unsure whether, in this situation,
Hungarian Law breaches the free movement of goods provisions of the
Treaty on the Functioning of the European Union (TFEU). They refer the
case in preliminary reference to the Court of Justice of the European
Union (CJEU). You are the judge rapporteur (reporting judge). Write your
judgment.

(i)
9. 2018 ZB Q3

Latvia has decided to ban the use of the word ‘light’ or ‘lite’ on the
packaging or name of food products because consumers might be led to
believe that are low in fat. Another Latvian law prohibits all forms of
advertising of food supplements other than at the point of sale. According
to the government, food supplements serve no purpose that cannot be
achieved through a healthy diet. The European Commission is assessing
whether these two measures comply with EU law. You are the official in
charge of the file. Please write your report.

10. 2019 ZB Q2 (i)

Mario and Luigi own a private company that imports olive oil in plastic
bottles from Italy to Denmark. There have been widespread reports in the
Danish media that some Greek olive oil has been contaminated with
potentially poisonous chemicals at the stage of production. This was
blamed by the media on the use of plastic bottles. The Danish Minister of
Health issues an emergency order prohibiting the sale of olive oil in non-
glass containers taking effect in one week’s time. This is to protect the
environment and ensure the safety of Danish consumers. Advise Mario
and Luigi on how European Union law related to the free movement of
 goods may apply to these circumstances.

11. 2020 ZB Q2

Bruschini, an Italian wine producer, enters into a contract to supply a

quantity of red table wine to Fabben, a German company specialising in
the production of sparkling wine. Bruschini obtains a “quality certificate”
from an Italian research laboratory. The first consignment of the Bruschini
wine is, however, subject to controls by German authorities, and some
samples are tested in a German laboratory. This test is based on a new
technique called “wine magnetic resonance control”. This test
demonstrates that water has been added to the Bruschini wine, and,
consequently, the wine is impounded on the instruction of the German
authorities. Bruschini argues that this test should be considered a violation
of free movement of goods and brings an action before the German
Courts, which reaches the CJEU via a preliminary reference.

You are the lawyer for Germany. Defend your case.

12. 2021 ZB Q1

In December 2020, with a view to reducing carbon emissions, Poland

passed the Motor Vehicles Standards Act (a fictitious measure). The Act,
inter alia, sets out new limits for emissions from motorcycles of up to 125
CC power (“scooters”). According to the explanatory memorandum
accompanying the Act, scooters are the worst polluters given their wide
use in urban centres. Article 11 of the Act prohibits the use of scooters in
cities with a population of more than 200,000 inhabitants. Article 12 states
that any scooters which violate the provisions of the Act are liable to be
seized and the owner and/or the user may be fined up to EUR 2,000.
Praggio, the Italian manufacturer of the iconic Bee 50 Scooter, seeks your
advice on whether the Polish Act is compatible with EU law.

Advise Praggio.