This rule was made by the Italian government as it believes it contains he potential for abuse from young people with eating disorders. Issue Can the Italian government limit the sale of your product to Its registered dietary clinics? Rule The rule stipulated in article 34 of the TOFU, is that there shall be no quantitative restriction or measures having equivalent effect on Imports between member states. Article 36 however allows countries to apply restrictions on imports on grounds of public health. These rules have further been clarified through case law, in the Cassis De DIJon Judgment and the Check judgment.
The Cassis De DIJon Judgment brought bout two concepts, the first being that In-distinctively applicable measures can be justified if proportional to protect public health. The other concept it brings about is mutual recognition, the idea that if a product is lawfully manufactured and sold in one member state, then it should be recognized in any other member state. The Check judgment stipulated that the selling arrangements of a state are not In breach of E internal market law, as long as they affect the sale of domestic products and those of other member states equally. Application
The fact that your product can only be sold in registered dietary clinics definitely creates a measure equivalent to a quantitative restriction. As it means that the sale of your products will be limited to these establishments. Italy’s argument that It Is an Issue of public health can be dismissed. This Is because the Cassis De Dijon recognized as your product is widely being sold in Ireland already. The Check judgment is also difficult to enforce as there exists no evidence that Italy produces a similar product. As there exists no equivalent domestic product, it is only the foreign ember state product which is affected by the measure.
Conclusion On the basis of the principle of mutual recognition, established in the Cassis De Dijon Case, Italy should allow your products to be sold freely in all supermarkets. Only if Italy would produce a similar product would it be able to claim that its domestic products are affected equally by its selling arrangement. Denmark Denmark will only allow the sale of the product, once Danish authorities have sampled each batch. In addition all yoghurt pots sold in Denmark, whether they are imported or not, must have their country of origin printed on the label. Issues 1 . Can Denmark sample each batch before they allow its sale? . Can Denmark demand that each yoghurt contains a label of its country of origin? Rules 1. As it is a distinctively applicable measure, the Dissolve formula can be used. This formula states that any measure that can potentially hinder community trade can be viewed as as measure having equivalent effect to quantitative restrictions. Article 36 of the TOFU does as previously mentioned, allow for restrictions on imports due to public health, but it must not be used as a disguised restriction on trade. 2. Article 34 prohibits all measures having equivalent effect to quantitative restrictions.
The Cassis De Dijon Case furthermore provides that even a measure taken on both domestic and imported products can in reality affect the imported product far more than the domestic product. This is because domestic products are produced along the guidelines of national law. Applications equivalent effect to quantitative restrictions. This is because your company would be unable to guarantee a consistent unlimited supply, as each batch would have to be examined and sampled at the boarder. Article 36 would be difficult to enforce as this measure seems to pose more of a threat to community trade than to Danish public health.
Furthermore there is actually no information available as to why Denmark is sampling the batches as a means of protecting public health. 2. The fact that you are required to label your product with the country of origin will clearly provide a quantitative restriction. It means that only the products which you label, will you be able to sell in Denmark. Should there be a sudden increase in demand for your product in Denmark, it might be impossible to supply, unless you already started babbling all your yoghurt with their countries of origin.
The ruling in the Cassis De Dijon Case is very much relevant as domestic suppliers are not affected by this, the same way as foreign suppliers. Domestic suppliers of yoghurt in Denmark must surely be aware of this rule, and unlike foreign suppliers do not need to alter their manufacturing procedure in order to satisfy it. Conclusion Both sampling the batches and requiring labels of the country of origin can be seen as clear measures having equivalent effect to quantitative restrictions. These assures are illegal under EX. law and should also be ruled as illegal by the European Court of Justice.
I hope that I have clarified your rights under EX. Law, and I strongly advise you to challenge the statements of Denmark and Italy by using the arguments above. If despite your arguments, they would be adamant in maintaining their selling arrangement for your product, I would not hesitate to take your case to the SEC], as I am confident that you would win the case on both fronts. National law must be compatible with EX. Law, and the free movement of goods is a vital component of the European Union. Yours truly, Josh Smith
