ate: March 16, 2012
From: Josh Smith
To: Fataway Ltd
Subject: Taking fataway to the European Continental Market
Dear those concerned at Fataway Ltd,
It has been brought to my attention that you have identified potential complications for the export of your product in both Italy and Denmark. I will guide you through your legal rights under EU law in order to eliminate these complications, or to at least comprehend them.
Facts of the case
As the product contains fat busting molecules it must be sold only through registered dietary clinics. This rule was made by the Italian government as it believes it contains the potential for abuse from young people with eating disorders.
Can the Italian government limit the sale of your product to its registered dietary clinics?
The rule stipulated in article 34 of the TFEU, 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 judgment1 and the Keck judgment2. The Cassis De Dijon judgment brought about 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 Keck judgement stipulated that the selling arrangements of a state are not in breach of EU internal market law, as long as they affect the sale of domestic products and those of other member states equally.
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...
Please join StudyMode to read the full document