Legal Opinion and Advice on the Free Movement of Goods under EU Law

Task 1: To draft an Opinion of the Advocate General

Task 1 requires you to draft a written Opinion, as the assigned Advocate General in the Court of Justice, by answering a series of questions referred to the Court of Justice from a domestic court in the context of a (fictitious) case.

 

Task 2 requires you to draft written legal advice as an EU lawyer to a company which seeks your expertise based on the (fictitious) case. 

 

As a guide, the page count for Task 1 should be approximately 4.5 pages.

As a guide, the page count for Task 2 should be approximately 2.5 pages.

 

The overall page limit is 7 pages (including footnoted references).

 

All references must be cited properly using the Oxford University Standard for the Citation of Legal Authorities (OSCOLA).

The assignment must be submitted as a Word document in Arial font size 11 and in double line spacing.

 

Task 1: To draft an Opinion of the Advocate General

 

The Real Oil Company is a new company established in Spain. It produces and sells olive oil. In January 2021 it was transporting a large batch of its best-selling type of oil, called the ‘Real Olive Oil’ from Spain to Belgium via France. In contrast to other oils, the ‘Real Olive Oil’ is a budget olive oil which contains an olive oil content of 75 per cent. ‘Real Olive Oil’ is marketed and sold in all other member states and the Real Oil Company is keen to enter the Belgian market. 

After weeks of civil unrest, a series of planned demonstrations took place across France in January 2021 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 Normandy.  Permission had been granted by the French authorities to the demonstrators to congregate in Normandy for a period of 8 hours. After 3 hours, however, the protest spilled out onto the A36 motorway toll-point (connecting France with the Belgian border). 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 Real Oil Company was unable to reach Belgium at the scheduled time for its delivery of ‘Real Olive Oil’.

 

The Real Oil Company submits that, under Article 34 TFEU, there is an absolute duty to ensure goods can pass freely without hindrance.  The French Government, on the other hand, submits that Article 34 TFEU can be restricted as the protesters were exercising fundamental rights protected under national and EU law.  Guidance on the correct interpretation of EU law is therefore being sought from the Court of Justice of the EU on the following questions: 

The Real Olive Oil Company Case

1. 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? (Refer to the relevant case-law)

2. Would the closure of the A36 Motorway by French authorities constitute a quantitative restriction or a measure having equivalent effect to 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?

3. Article 34 TFEU prohibits Member States from imposing rules which may restrict the free movement of goods. Would the Member States be 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.

4. 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’ of fundamental rights; and what is the ‘field of application’ of EU fundamental rights? Refer to the relevant case-law. 

5. 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., decision to allow, the protest in Normandy compatible with the free movement of goods? (Refer to the cases of Schmidberger and Omega)

You have been assigned as the Advocate General (AG) in the Court of Justice for this dispute.  Your Opinion must answer the five questions referred to you by the French court. Your Opinion will not be legally binding on the final judgment of the Court of Justice but will be highly influential.  As such, the Opinion must (i) explore all the legal issues (with reference to relevant legal provisions, doctrines, and case law) and (ii) provide definitive answers to the French national court, so that it can resolve the dispute at the domestic level. 

 

Task 2: To give legal advice

Recap: A newly established Spanish company called ‘The Real Oil Company’’ was transporting a batch of olive oil bottles of its best-selling product, ‘Real Olive Oil’, from Spain to Belgium via France.  The Real Olive Oil is a budget olive oil which contains an olive oil content of 75 per cent. It is marketed in other member states, and the Real Olive oil is keen to enter the German market.

New issue: On the 12th January, when ‘Real Olive Oil’ eventually arrived in Germany, the German authorities issued a notice that the consignment of Real Olive Oil’ oil could not be marketed and sold in Germany. The notice was issued by the authorities on the basis of German legislation which seeks to ‘protect public health’ so as to ‘avoid the sale of olive oils that do not comply with the standards of ‘purity’ that requires the olive oil to contain at least 90% of pure olive oils. The German authorities assert that, whilst the legislation does not ban the sale of olive oils, it does prohibit the sale of the oil that has an olive oil content of less than 90 per cent.  

 

6. Would The Real Olive Oil be able to argue that the German legislation as being contrary to Article 34 TFEU; if so, on what basis?

7. Would Germany be able to justify the imposition of a minimum olive oil content (refer to the relevant case-law); if so, on what basis?

8. Would German legislation take precedence over provisions of EU law (refer to the relevant case-law); if so, on what basis?