Free Movement of Goods
1. In order to fight the growing problem of obesity among young people, Swedish law sets a limit on the amount of fat permitted in snack bars intended primarily for the youth market. It also requires that the packaging of all snack-bars should be in subdued colours so as not to be overly enticing or attractive to small children.
Günther, a snack-bar manufacturer based in Germany, has for many years sold his ‘Snick-Snack’ bars to the Swedish market but now finds that they contain twice the amount of permitted fat. He is willing to make some adjustments to his product to reduce the fat content to some extent but cannot reduce it to the extent required. Nor can he reduce it in time to meet the deadline set by Swedish law. He is concerned that he is going to lose a great deal of his sales and considers that the law is particularly unfair as it will work to the advantage of a number of Swedish manufacturers who have traditionally been making a low-fat snack which is well within the limits set by the new law.
In advising Gunther, the main issue to be discussed is whether the law which limits the amount of fats permitted in snack bars constitutes a non-fiscal barrier to the free movement of goods. The Treaty free movement of goods provisions apply to all products which ‘can be valued in money and which are capable as such of forming the subject of commercial transactions’ (authority).
As the court explained in Geddo, ‘the prohibition on quantitative restrictions covers measures which amount to a total or partial restraint of imports and exports’. On the facts it is clear that there is no rule restraining the imports of snack-bars but the fats content limitation rule may in fact constitute measures having equivalent effect to quantitative restrictions (MEQR) on imports.
In International Fruit, it was held that a national rule requiring import licences for the import of goods from other MS would amount to MEQR....
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