Reading Craig and de burma pp 664-707 Article 28 In tech, there was the non-allowance of videos being shown after the movie had been produced It was a situation where the national rules were restricting trade; it restricted sale and hire of videos. There was a time limit of one year. The courts of law found that there was a similar law in all other member states, and the courts found that they could leave it as such, because it was protecting a national industry in each member state. B&Q In this case, they claimed that there was a restriction under the free movement of goods, after b and q had been prosecuted for trading on a Sunday.
The original law was there to protect people for the Sunday laws. The courts said that every member state was allowed to regulate the working hours of each country. This law affected all shops and all goods. This was to protect everyone. What is peculiar about these national rules (Question 1) Equal burden and dual burden rules. German law said that all liquors must have a minimum of 25% alcohol, and it became a dual law because it was regulating the import of alcohol.
These rules are not effect for protection at all. Senile and tureen are under the equal burden of rules. These rules seem to have an effect on imports as well. The effect of these rules is that it will allow a proportionate non-violation of article 28. These rules have the same effect on domestic goods as well as imports.
The effect of these goods not being allowed to be sold on a Sunday is not regulating it, but it is equal because the domestic goods are being affected as well as the imported goods. Provided that the courts can see that there are no restrictions between the domestic goods as well as the imported goods, then there is no problem. The aim of the law is to allow people to have a day off from work, and this is allowed under European law, and is not regulated by national registers. If a law restricts trade then it falls unde article 28 of the convention. These laws are particular in the fact that they are an equal burden law Question 2 In what basis is the English shop, act conflicting with European, law. This is go back to the restriction of selling goods on a Sunday, and its aim is to protect people and allow them to have a rest day.
Different courts in different areas of England did not agree in what the proportionate law was, so people in one area of the auk were not affected but others were. The decisions were different, but legal reformatory was re-established in b and q versus stoke county council What was laid down in the Keck case There is a problem of the commercial freedom. Traders were seen to have abused this by the trading. Does this national law stop a good coming into a member state, but the answer is that every time a law is challenged then it should come under article 28 This refers to paragraph fifteen and sixteen of the judgements. Anything that effects the composition of a product can still be challenged under article 28. When a national law comes to court, this only challenges the right to trade.
Whilst looking at equal burden laws, we are not asking the producers to have different types of packaging. The courts allow this exception, is so that there can be no market access. If the goods can t get onto the market, they need to have the labelling packaging etc the same. When the goods in question have into the member state, the selling arrangements do not fall under article 28. The Amelia Affects Case This case is about national legislation was not MEQR the ecj said that although it was the record of sales promotion, the laws said that the content of the magazine were not to come under article 28. Magazines with prizes.
In Germany, this was allowed. In Austria, this was not allowed, so the Germans would have an advantage as things reached the national Austrian market. The courts said that if this law was allowed to stand, it world mean that the German producers would have to re market the magazine. This was dual burden challenge. Sem erano C aseAn Italian law that all shops had to close on Sundays. The applicants challenged the law under article 28, saying that they needed to open to sell all imported products.
The courts argued that the law couldn t be changed, the fact that the sales were restricted were. The argument is that all shops in Italy have to close on a Sunday. They were arguing that they couldn t have access because of the Sunday problems. They argued that because the shops closed on a Sunday, it was favouring the small local shops had more ability to sell domestic goods.
The courts argued that there wasn t enough to establish that the domestic market wasn t at an advantage. Access for foreign goods to the market in question. TK-Heimdienst Sass GmbH The courts answer was not clear. The courts said not to change the magazine, but said that they were not allowed to sell and advertise the magazine over the TV. They could sell in the press, but not on the telly. They said that the national law could not effect the It highlights that the advertising for children was through the television.
The ecj said that at the end of the day it was a question of fact as to whether the goods are being preferred. This leaves the question that is imported or domestic goods being the preferred products for sale. Where is the line drawn Market analysis A case that relates to the sale on rounds. Local shops have deliveries to these outlying areas. A strange law that says that if you are going to deliver goods on a round, that you have to have a shop adjacent to the area on the rounds. You have to ensure that you have the goods that you would sell on the rounds.
This law was challenged, it was felt that Heimdienst didn t have a shop established near where they wanted to do their rounds. This was challenged. The lower courts said that the Austrian law was just a selling arrangement. The commission saw it differently.
If the argument is pushed further, then it becomes a message of movement of free goods. You are not just going to have a shop in the original states as well as where the rounds were. The court reviewed case law, and it concluded that the domestic law in Austria did constitute an MEQR and had become a dual burden rule. For other traders to have the same access to the Austrian markets, they would have to purchase another store near the rounds.
This case was looking at the essence of article 28, and is this Austrian law hindering trade. The courts found that this was not right. This shows that the courts have to look at the goods to ensure an open trading on the market.