Question

Sarah Brown Food Products Ltd (‘Brownco’) is a food manufacturer based in Dublin with its
registered office in the Republic of Ireland. It produces a wide range of ‘instant meals’ aimed
primarily at students and retirees.

Brownco relies heavily on artificial food preservatives, permitted under EU law, to give its products a
long shelf life. Their instant meals are very popular and have taken on cult status and reputation due
to the garish colours used on the packaging and advertising. Brownco has been so successful in the
domestic market in the Republic of Ireland that a year ago it decided to branch out and commenced
marketing its products in other Member States of the European Union. To distinguish its products
from those of other food manufacturers it redesigned the packaging for the international market so
that the backs of the packets are covered with an Irish national flag (which consists of a green, white
and orange tricolour) and a somewhat garish large green shamrock symbol. The fronts of the
packets are unchanged.

Brownco has encountered the following problems in various European countries:

​ a.In Sweden, all products with artificial food preservatives are currently banned from
being sold in Sweden as part of a national health campaign. It is hoped by the Swedish
government that when the ban ceases in 2025, manufacturers will not go back to using
artificial preservatives as they will have found natural alternatives.
​ b.In Germany, Brownco’s products fell foul of local rules which prohibit garish green
colours from being used on any products offered for sale. The reason for the rules is
that it was felt that when products with garish green colours are placed next to local
rivals’ products on supermarket shelves, they gain an unfair advantage in that they tend
to suggest that the source of the product’s ingredients is organic. The prohibition was
introduced under local German government laws on consumer protection.
​ c.In France, the government banned Brownco’s products owing to the Irish tricolour flag
appearing on the packaging. The French government insisted that this was not a
protectionist measure but, rather, a response to a spate of shop windows being
smashed in premises where products bearing a tricolour flag, other than the French
tricolour flag, were sold. The French government invoked emergency powers to ban
products showing any tricolour flag other than the French tricolour on the grounds of
safeguarding national security.
​ d.Brownco wants to attend and run a stand at a food convention. Brownco wants to
promote a proposed new business giving advice to local food producers on how to
produce instant meals. The convention is being held in Bucharest and is sponsored by
the Romanian government. The convention is to be held over four weeks. Brownco
applies to the relevant Romanian government department for a stand at the convention
but is refused. The reason for the refusal given by the Romanian government is that all
stand-holders who are non-Romanian nationals must have either a subsidiary, which is
 a registered Romanian company, or a foreign branch registered in Romania. Brownco
has no such registered presence in Romania. The reason given to Brownco for a
registered company or branch requirement is that, since 1950, there is a national
Romanian decree that security service suppliers in Romania can only offer security
services to Romanian nationals.

Advise Brownco on whether it can challenge any of these national rules by relying on
European Union laws in the national courts in the Member States concerned.

Learning outcomes
Knowledge and understanding

● explain the rules and principles on the application of European Union (EU) law
● explain concepts and principles governing situations where EU and national laws
conflict
● explain and evaluate how free movement rights under EU law may be relied upon
● demonstrate an understanding of the remedies available against Member States who
have failed to meet an obligation under EU law.

Skills

● apply legal principles and remedies to resolve identified issues

● organise and assimilate legal and factual material relating to EU law and express a
reasoned view
● critically read, understand, evaluate and discuss legal materials in the area of EU law
● demonstrate digital literacy through the use of module materials and/or online legal
databases.

Advice
The question
You will need to explain the legal rules which relate to the applicability of EU Treaties, Regulations
and Directives and the remedies in the area of free movement.