On 9th November 2022, a newly established Spanish company called ‘’The Lovely Liquor Company’’ was transporting 500 bottles of its best-selling product, ‘’Susan’s Super Sherry’’, from Spain to Germany via France. Susan’s Super Sherry is a budget Sherry that contains an alcohol content of 25 percent. Susan’s Super Sherry is marketed and sold in Spain, Italy, and Hungary, and the Lovely Liquor Company is keen to enter the German market.
After weeks of civil unrest, a series of planned demonstrations took place across France on 11th November 2022 to raise awareness about ‘systemic racism’, alleged police brutality towards minorities, and the removal of statues of colonial figures. One such demonstration was taking place in the region of Burgundy. Permission had been granted by the French authorities to the demonstrators to congregate in Burgundy for a period of 8 hours.
After 3 hours, however, the protest spilled out onto the A36 motorway toll point. To ensure the continuation and safety of the protesters, as well as road users, the French authorities closed the A36 motorway for 5 hours. As a result of the closure, The Lovely Liquor Company was unable to reach Germany at the scheduled time for its delivery of Susan’s Super Sherry.
Questions
- What is the purpose of Articles 34-36 TFEU? What are the concepts of quantitative restrictions; measures having an equivalent effect to quantitative restrictions; what are the Treaty derogations and where are these found?; What are mandatory requirements?
- Would the closure of the A36 Motorway by French authorities constitute a quantitative restriction or a measure having an equivalent effect on a quantitative restriction? What are distinctly and indistinctly applicable measures? In the instant case, was the closure of the A36 Motorway by French authorities discriminatory (distinctly) or non-discriminatory (indistinctly applicable)? Does this make a difference in terms of the justification for the restriction? If so, why?
- Whilst Article 34 TFEU prohibits Member States from imposing rules which may restrict the free movement of goods, are Member States in breach of Article 34 TFEU when they fail to take positive steps to ensure the free movement of goods? Clarify with reference to Case 265/95 Commission v France and Case C-112/00 Schmidberger v Austria.
- The French government claims that the closure of the A36 Motorway is justified on grounds of protecting fundamental rights. How are fundamental rights protected as part of the general principles of EU law and the EU Charter of Fundamental rights? In addition, what are the ‘sources of inspiration’ for fundamental rights; and what is the ‘field of application’ of EU fundamental rights? Refer to the relevant case law.
- Would the restriction of Article 34 TFEU by the French authorities, in this case, be justified, namely, whether the restriction pursues a legitimate aim and whether it has been exercised in a proportionate way? In other words, was the failure to ban i.e., the decision to allow, the protest in Burgandy compatible with the free movement of goods?
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