EU internal Market law. Mid term evaluation assignment (0)

EU Internal Market Law

Mid- term online evaluation assignment for Distance Learning Students

The Assignment: Hypothetical Case

In the Member State A several NGOs, uniting parents concerned with safety of children and young adults, ordered a study of dog attacks on people (and especially children) resulting in deaths or maiming. The aim of the study was to identify, if possible, the dog breeds of potentially enhanced danger for people.
The study’s results showed that pit bulls and their close mixes as well as Rottweilers and their close mixes were jointly responsible for over 70% of attacks. The authors of the study explained the statistics by popularity, big size and powerfulness of the named breeds and their ability to do a lot of damage. Besides, about the pit bull attacks the absence of warning from a dog played a significant role , because due to the custom of docking (cutting short) pit bulls’ tails warning signals could not be easily recognized.
The NGOs concerned publicized the study and then, with the help of supporters, by the way of legislative initiative proposed a law draft prohibiting breeding, sale and import of pit bulls, Rottweilers, and close mixes of both .
The parliament of Member State A ordered an additional scientific study, which largely confirmed the statistics. It also noticed, “Children are normally at greatest risk from dog bite because they play with dogs more often, have less experience in reading dog behavior , are more likely to engage in activity that alarms or stimulates a dog, and are less able to defend themselves when a dog becomes aggressive ”. Scientific studies in dog psychology were not conclusive on direct causation between a dog breed and aggressiveness. They pointed out other influential factors such as individual character and disposition of an animal, resulted, among other things, from its training, living surroundings etc.
In those circumstances and following the precautionary principle, the parliament adopted the prohibitive law of the scope suggested by the NGOs stating that “the State cannot idly wait until the scientists come to the definite conclusion about actual sources of the dangerous behavior” and “has to preventively interfere in order to effectively protect life and health of its citizens, in particular those of younger and senior generations”.
Company PB&R is a small family undertaking active in the dog- selling and –importing business for over 30 years and having a focus on pit bulls, Rottweilers, boxers, Labradors, and some other breeds which were classified as dangerous by the study. The company has strong connections to breeders in different EU countries. The prohibition of dealing (selling and importing) in pit bulls and Rottweilers has hit noticeably company’s profits potentially driving it out of business or leading to change of its specialization.

Questions :

Can the PB&R Company successfully claim any violation of the EU law related rights ?

1.1. Goods ?
Yes,
Articles 34 and 35 TFEU cover all types of imports and exports of goods and products . The range of goods covered is as wide as the range of goods in existence, so long as they have economic value : ‘by goods, within the meaning of the … Treaty , there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions’1
In this case , dogs are classed as goods, because they have economic value and are subject of sale and import.
Short overview: The German government banned the breeding of fighting dogs after the June 6th, 2001, when the pit bull tore up to a pieces a six- year -old boy in Hamburg. German Chancellor Gerhard Schroeder assembled an emergency meeting of the Council of Ministers, in consequence of which the prohibitive Law act was adopted that the following breeds: pit bull terriers, bull terriers, American Staffordshire terriers are restricted for breeding, import/ export . The owners, who already had dogs, were asked to take them abroad . Some animals were sent for training, some resulted in the euthanasia of dogs. The owners of the remaining dogs on the territory of the country were obliged to sterilize them and pay taxes .
In France , it was forbidden to breed and import dogs of these breeds after the death of eight children in Marseilles. They were all bitten by a young pit bull terrier, who escaped from the owner .
England banned the breeding of " dogs- fighters " in 1991. Later New Zealand, France, Israel, Australia, Italy , Spain, Denmark, and Sweden followed this example.
1.2. Is there a restriction of trade in goods?
Yes. See below
Is the case linked with free movement of goods?
Yes.
Articles 28–30 of the EC Treaty defined the scope and content of the principle by prohibiting unjustified restrictions on intra -EU trade. The right to free movement of goods originating in Member States , and of goods from third countries, which are in free circulation in the Member States, is one of the fundamental principles of the Treaty (Art. 28 TFEU).
According to its wording, Article 34 TFEU applies to obstacles in trade ‘between Member States’. A cross -border element is therefore a prerequisite for evaluating a case under this provision .
Taking into account that described measures affect also import and export of dogs, its fall in the scope of the Article 34-36 TFEU. National legal provisions in question are capable of hindering intra-EU trade2
Is there a measure in form of action or inaction?
Measure in question is in form of action - the parliament adopted the prohibitive law.
Articles 34-35 TFEU are often characterised as a defence right which can be invoked against
national measures creating unjustified obstacles to cross-border trade. Accordingly, infringements of Article 34 TFEU seem to presuppose activity on the part of a state. In this sense , the measures falling within the scope of Articles 34-35 TFEU consist primarily of binding provisions of Member States’ legislation .
Can this measure be attributed to a public authority?
Yes. The law was adopted by the Parliament and has the binding power .
Is the measure restrictive in the sense of Dassonville formula ?
Yes.
In Dassonville judgment, the Court of Justice took the view that „all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually, or potentially, intra-Community trade is to be considered as measures having an effect equivalent to quantitative restrictions” ( Cases 8/74 of 11 July 1974 and points 63 to 67 of Case C-320/03 of 15 November 2005). Cassis de Dijon case (Case 120/78 of 20 February 1979) laid down the principle that any product legally manufactured and marketed in a Member State in accordance with its fair and traditional rules, and with the manufacturing processes of that country, must be allowed onto the market of any other Member State.
A state measure can constitute a prohibited measure having equivalent effect even if:
• it is of relatively minor economic significance;
• it is only applicable on a very limited geographical part of the national territory;
• it only affects a limited number of imports/exports or a limited number of economic operators.
Adopted legal act prohibits import of dog breed to the state. According to the TFEU, none produced in Member State(s) goods, what are legal could not be restricted for export or import within the Member States. The goods cannot be restricted in one Member State and be at the same time allowed on the other Member State. Member States are obliged to allow goods that are legally produced and marketed in other Member States to circulate and to be placed on their markets .
According to Articles 34 TFEU: Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States. TFEU Article 35 states: Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States. Prohibition of measures having an effect equivalent to quantitative restrictions. Articles 34 and 35 TFEU cover all types of imports and exports of goods and products, including dogs.

According to the case factual circumstances, the exact dog breed selling/buying ban amounts to a discrimination against certain part of goods (dogs). The prohibition of dealing (selling and importing) in pit bulls and Rottweilers has hit noticeably PB&R company’s profits potentially driving it out of business.
From this, I surmise that provisions in question are to be regarded as a measure having equivalent effect to an import/export restriction contrary to Articles 34-35 TFEU.
1.3. Nature of the measure in question.
Discriminatory measure? Selling arrangements ?
The European Court has consistently held that the Member States may no longer rely on Article 36 of the EEC Treaty to justify rules restrictive of trade, when Community directives provide for the complete harmonization of all measures necessary to ensure the protection of the interests enumerated in that article. According to the case factual circumstances, the exact dog breed selling/buying ban amounts to a discrimination against certain part of goods (dogs).
Cassis de Dijon case (Case 120/78 of 20 February 1979) laid down the principle that any product legally manufactured and marketed in a Member State in accordance with its fair and traditional rules, and with the manufacturing processes of that country, must be allowed onto the market of any other Member State. This was the basic reasoning underlying the debate on defining the principle of mutual recognition, operating in the absence of harmonization. According to the above said, the prohibition of dealing (selling and importing) in pit bulls and Rottweilers has hit noticeably PB&R company’s profits potentially driving it out of business.
Importantly, the field of application of Article 34 TFEU is limited by the Keck jurisprudence, which states that certain selling arrangements fall outside the scope of that article, if they are non-discriminatory (i.e. they apply to all relevant traders operating within the national territory, and affect in the same manner, in law and in fact , the marketing of domestic products and products from other Member States) (Joined Cases C-267/91 and C-268/91 of 24 November 1993). However , there is no ban in every Member State for “dangerous dogs” listed above, therefore such restriction is unjustified and caused PB&R company loses.

Member State A created the Law act on national basis . Harmonization of national legislation must be restricted to essential requirements , and is justified when national rules cannot be considered equivalent and create restrictions (Council resolution of 21 December 1989 and Council Decision  93/465/EEC). In this respect , the Treaty articles guarantees that any obstacle to trade within the internal market can be scrutinized as to its compatibility with EU law.

1.4. Justification of the restrictions
However, the free movement of goods is not an absolute value. In accordance with TFEU Art. 36 The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality , public policy , or public security ; the protection of health and life of humans, animals, or plants ; the protection of national treasures possessing artistic , historic, or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. The Member State A imposing a national ban on the exact breeds should show that the measure is necessary and, where appropriate, that the marketing of these dogs poses a serious risk to public health and that those rules are in conformity with the principle of proportionality (Case C-270/02 Commission v Italy [2004] ECR I-1559, Case C-319/05 Commission v Germany [2007] ECR I-9811).
Current restriction is based on statistics that ignores genetics and the influence of the dog's keeper has failed to prevent many dog biting incidents. Sadly, it has also resulted in the unnecessary euthanasia of dogs simply because of their breed or type. No breed of dog is inherently dangerous. Scientific research has proven that the pit bull terrier and related breeds are physiologically no different from any other breed of dog. Dr Lehr Brisbin at the University of Georgia has proved the skeletal structure of the pit bull terrier jaw is no different from that of any other dog with respect to 'jaw locking ' - they simply have strongly muscled jaws in common with many other breeds. The problem of dangerous dogs is a social one and needs to be tackled through the enforcement of effective legislation that seeks to curb irresponsible owners of all types of dog and had better educate the dog owning public to prevent incidents before they occur , not by restriction of breeding special type of dogs.
Owning a dog is person right for private property. Physical persons and legal entities can own any property, which is legal and can belong to person or legal entity. The number and value of property owned by individual and legal entities are not limited. They are free to establish their rights and obligations based on the contract and in determining any terms of the contract that are not contrary to the law. Civil rights may be restricted based on the federal law and only to the necessary extent to protect the foundations of the constitutional order, morality, health, rights, and legitimate interests of others , ensure the country's defense and state security. In this case, there is no any strict proves, that all individuals on certain god breeds are life dangerous for human. Measures must have a direct effect on the public interest to be protected , and must not go beyond the necessary level. This Law act applied only after an incident had taken place , not as a preventative approach , so that concerning specific case firstly. Prohibiting Law Act, to be justified under Article 36 TFEU or one of the mandatory requirements established in the case-law of the Court of Justice, a state measure has to comply with the principle of proportionality. The national ban for trading pit bulls and Rottweilers, as dog to be defined as 'Dangerous' under this Law act, the dog does not need to have acted dangerously or be aggressive. By that type of Act the dog must simply have a substantial number of characteristics of banned breeds to be classed as an “ illegal dog”.
A ban on the marketing of a specific breed is the most restrictive measure a Member State can adopt from a free movement of goods perspective. Adopted Law Act is not proportionate, because alternatives are available , such as insurance payments , dog’s trainings, licensing ect.
Therefore, making such type of legislation act was unproportionable and not justified from the beginning .
***
According to the TFEU art. 26 and 37 free movement provision, PB&R Company can successfully claim for lost profit and compensation, because Member States shall adjust any State monopolies of a commercial character to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States. The provisions of this Article shall apply to any body through which a Member State, in law or in fact, either directly or indirectly supervises, determines, or appreciably influences imports or exports between Member States. These provisions shall likewise apply to monopolies delegated by the State to others.
Due to the fact, that Member State A adopted the Law Act, that terminates person right of ownership, the losses caused to the owner because of adopting the Act, including the value of the property, should be reimbursed by the State. Disputes about costs should be settled by the national court.

How company can claim/ invoke EU law? Please explain available judicial procedure(s) and possible remedies for violation of EU law.
2.1. Company must claim/appeal for national court and use the procedure of preliminary ruling – a procedure that enable national court to refer queries to the court of Justice on the interpretation or validity of the EU law.
Any national court to which a dispute in which the application of a rule of European law raises questions ( original case) has been submitted can decide to refer to the Court of Justice to resolve these questions. There are two types of reference for a preliminary ruling:

• a reference for a ruling on the interpretation of the European instrument ( primary law and secondary law): the national judge requests the Court of Justice to clarify a point of interpretation of European law in order to be able to apply it correctly;
  
• a reference for a preliminary ruling on the validity of a European instrument of secondary law: the national judge requests the Court of Justice to check the validity of an act of European law.
  

The reference for a preliminary ruling is therefore a reference from one judge to another . Although a referral to the Court of Justice may be requested by one of the parties involved in the dispute, the decision to do so rests with the national court.
In this respect, Article 267 of the Treaty on the Functioning of the EU (TFEU) specifies that national courts which act as a final resort , against whose decisions there is no judicial remedy, are obliged to make a reference to the Court of Justice for a preliminary ruling, unless the Court has already ruled on the matter or the interpretation of the EU rule of law in question is obvious.
In contrast , national courts which do not rule in final resort are not obliged to exercise the reference for a preliminary ruling, even if one of the parties requests it.
The Court of Justice Decision has the force of res judicata. It is binding not only on the national court on whose initiative the reference for a preliminary ruling was made but also on all of the national courts of the Member States.
In the context of a reference for a preliminary ruling concerning validity, if the European instrument is declared invalid all of the instruments adopted based on it are also invalid. It then falls to the competent European institutions to adopt a new instrument to rectify the situation
2.2. In case of claim for contestation unjustified Law Act company, considering that a measure attributable to a Member State is contrary to Articles 34–36 TFEU, may file a complaint with the European Commission. According to the Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of community law, the complaint must be submitted in writing, by letter , fax or e-mail in any of the official languages of the EU. It is recommended to use of the ‘standard complaint form’ as it ensures that all the necessary information is forwarded to the Commission, and therefore speeds up processing of the complaint. An initial acknowledgement of receipt will be sent to the complainant by the Secretariat-General of the Commission within 15 working days. Within one month of this acknowledgement, the Commission will decide whether the correspondence should be registered.
Any citizen of the European Union, or resident in a Member State, may, individually or in association with others, submit a petition to the European Parliament on a subject which comes within the European Union's fields of activity and which affects him/them directly. A petition may take the form of a complaint or a request and may relate to issues of public or private interest. The petition may present an individual request, a complaint or observation concerning the application of EU law or an appeal to the European Parliament to adopt a position on a specific matter.
Regulations of the consolidated version of the treaty on the functioning of the European Union has been used is this written assignment.
1 Case 7/68 Commission v Italy [1968] ECR 423
2 Case 8/74 Dassonville [1974] ECR 837, paragraph 5.
1