EUR-Charts

Suggested solution:

a) The new law amounts to a quantitative restriction under Art. 34 TFEU. However, it raises the question of whether there might be a justification under Art. 36 TFEU. The Animist party might try to argue that the measure involves the protection of the health and life of animals as well of the humans who eat their meat. However, it must remembered that the derogation grounds listed in Art. 36 TFEU must be interpreted strictly (Irish Souvenirs).

[Relevant Charts: Chapter 8, in particular Charts 8/18 and 8/24]

b) The case involves harmonising secondary law. In principle, such law leaves no room for the application of the Treaty rules on the free movement of goods. However, in the case of Art. 114(4) TFEU (which provides one possibility for the Member States for derogating from the harmonising law adopted on the basis of Art. 114 TFEU, with Art. 114(5) TFEU being the other one) there is a link with the Treaty provisions on the free movement of goods, in that Art. 114(4) TFEU refers to Art. 36 TFEU. In order to be acceptable, the stricter national law must be necessary to maintain national provisions on grounds of major needs referred to in Art. 36 TFEU. However, unlike in “real” free movement cases, this is not simply for the Member State to evaluate but must be examined and accepted by the Commission in the procedure provided for by Art. 114 TFEU.

[Relevant Charts: Chapter 8, in particular Charts 8/1 and 8/24, further Chart 4/6]

c) This rule is not expressed in numbers (i.e. it is not a quantitative restriction proper) and it applies to all products in the Member State in question (i.e. it is indistinctly applicable). The question then arises of whether it concerns the circumstances of selling, which would make it fall outside the scope of Art. 34 TFEU, thereby avoiding a finding that it amounts to an MEEQR (Keck). This may be a matter of dispute. Arguably the view can be taken that to a Catholic a blessing adds something to the product as such, thereby making the rule a product rule. If so, it can easily be argued that it affects market access (Dassonville, Towing Trailers). However, the question is whether the government can rely on a mandatory requirement (Cassis de Dijon). It might be difficult to convince a judge of this. Even if so, the judge would probably find that it is disproportionate to impose criminal sanctions for breaches. Note: the fact that the rule is limited to Catholic artefacts is irrelevant in the context of the free movement of goods, which is not concerned with issues such as discrimination on grounds of religion.

[Relevant Charts: Chapter 8, in particular Charts 8/16 and 8/19-8/23]

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