Free Law Dissertations - With Regard To The Directive, Article 249 Stipulates That It Shall: Be
With regard to the Directive, Article 249 stipulates that it shall:
be binding as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods...
Franz Grad was silent on the matter of the directive, but, in Van Duyn v Home Office, it was stated that by being binding, the possibility of direct effect before a national court cannot be ruled out. Once again, the virtue of sufficient clarity was seen as a requirement for the provision to directly applicable.
It is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member States and individuals
Discussion of the Statement in Franz Grad is a discussion of Article 249 interpretation. From analysis of case law that questions the direct effect of directives and decisions, it is clear that the courts adopted three distinct stages in their line of thought. Firstly, absence of express reference to direct effect for decisions and directives in Article 249, coupled with such express reference to regulations, only leads to the conclusion that regulations are always directly applicable. Secondly, since the wording of Article 249 does not expressly preclude decisions and directives from being directly applicable, the courts have applied logic to the question of direct applicability that has led them to the conclusion that sufficient clarity of the provision is enough to allow it to be invoked before a national court.
Question 3
Advice to Momento as to whether the following conditions are compatible with the law governing the free movement of goods within the European Union
(a)
Do either or both requirements to, firstly, package in red square boxes and secondly, place a stamp of origin, constitute measures that have an equivalent effect to a barrier to trade under Article 28?
In the first place, if the packaging requirement does not constitute a normal practice for the exporter, the requirement will incur an extra cost that has the equivalent effect of a barrier to trade. This was found in the case of Rau concerning Belgian butter packaging requirements. Therefore if the requirement will create difficulty and incur extra costs to the exporter, it will be caught by Article 28.
In the second place, can the Made in Italy stamp be justified on grounds of consumer protection? These stamps are likely to have a detrimental effect on sale since tourists would favour souvenirs made in the United Kingdom and they are treated as discriminatory rules because prejudices against foreign products may be asserted. This was held in the case of Commission v UK.
(b)
Does the certificate of origin constitute a mandatory requirement that is justified?
