FMG Prop # 1

Bruschini, an Italian wine producer, enters into a contract to supply a quantity of red table wine to
Fabben, a German company specialising in the production of sparkling wine. Bruschini obtains a
“quality certificate” from an Italian research laboratory. The first consignment of the Bruschini
wine is, however, subject to controls by German authorities, and some samples are tested in a
German laboratory. This test is based on a new technique called “wine magnetic resonance
control”. This test demonstrates that water has been added to the Bruschini wine, and,
consequently, the wine is impounded on the instruction of the German authorities. Bruschini
argues that this test should be considered a violation of free movement of goods and brings an
action before the German Courts, which reaches the CJEU via a preliminary reference.
You are the lawyer for Germany. Defend your case.
Bruschini, an Italian wine producer, enters into a contract to supply a quantity of red table wine to
Fabben, a German company specialising in the production of sparkling wine. Bruschini obtains a
“quality certificate” from an Italian research laboratory. The first consignment of the Bruschini
wine is, however, subject to controls by German authorities, and some samples are tested in a
German laboratory. This test is based on a new technique called “wine magnetic resonance
control”. This test demonstrates that water has been added to the Bruschini wine, and,
consequently, the wine is impounded on the instruction of the German authorities. Bruschini
argues that this test should be considered a violation of free movement of goods and brings an
action before the German Courts, which reaches the CJEU via a preliminary reference.
You are the lawyer for Germany. Defend your case.
This case relates to the freedom of goods. In the case of Commission v Italy. European Court of
Justice stated that a good is any product that has monetary value, and which forms a basis of a
commercial transaction. In our case, the goods will be the wine. In the law of free movement of
goods, there are two types of barriers that are imposed on products, monetary and non-monetary.
In our question, there is no monetary barrier being imposed. Only non-monetary barriers are being
questioned. Non-monetary barriers are further divided into two types, quantitative restriction and
MEQR’s. Article 34 of the treaty prohibits all member states measures which are quantitative
restrictions on imports and MEQR’s on imports.
Quantitative in the case of Geddo as quotas or limits or bans on the quantity or the number of goods
which can be imported or exported from one Member State to another. A total ban on imports or
exports can be regarded as a quota of zero. Whereas MEQR’s were defined in the case of Procureur
v Dassonville, as trading rules enacted by Member States, which are capable of hindering, actually,
or potentially, directly or indirectly, intra community trade. We know from the facts, that Germany is
not imposing any quantitative restriction on the import of wine, so their measure is an MEQR.
Furthermore, MEQR’s can also be sub-divided into two categories, distinctly applicable MEQRs and
indistinctly applicable MEQRs. Distinctly applicable MEQRs are those rules which are capable of
hindering intra-community trade but only apply to imported goods and do not apply to equivalent
domestically produced goods. This definition was given in Article 2 of Directive 70/50 of 1969.
Indistinctly applicable MEQRs are the rules which apply equally to both imported and domestic
goods in law, but which in fact impose an extra burden on imports. Usually, because imports will
have to comply with two sets of rules, rules of the home state and rules of the importing state. This
definition was given in the case of Casis de Dijon. The definition of MEQR is very wide. Germany’s
rule of testing the imported wine in its own laboratories is also an MEQR, although an indistinct one,
as it applies equally to both, domestic and imported wine. Although, Germany is in breach of Article
34, still it can rely on the derogations provided in Article 36. The rules which are caught by Article 34
can be justified on one of the 6 grounds listed in Article 36. The list of justifications is exhaustive.
Germany can try to rely on the justification of Public Health. In the case of Doc Morris, it was held
that public health is a valid derogation but can only be used if the rules are proportionate. It is
perfectly valid, that Germany is not satisfied with Italy’s testing, and wants to test itself too.
Bruschini can argue that the risk to public health must be genuine, and the rules must be
proportionate. In Commission v UK (Imports of Poultry Meat), it was held that only if the risk is
genuine, can derogation apply. From the facts of the scenario, it does not seem at all that a genuine
health risk was posed by the wine that was being imported, to the general public.
As Germany won’t be successful under this, so they might try to argue one of the further
derogations listed in the case of Cassis de Dijon. The court in this case laid down the ‘principle of
mutual recognition.’ This says that goods that are lawfully produced and marketed in one member
state should be able to freely market in others as well. It is to note that, the further derogations
provided under this are only applicable to indistinctly applicable MEQRs. They can only be justified, if
they are protecting a public interest/mandatory requirement and the rule is proportionate, which
means that it actually protects the purpose for which it was enacted and there were no less
restrictive ways to protect that public interest.
Germany will be able to rely on these derogations, as their rule is an indistinctly applicable MEQR.
The list of derogations provide under Cassis is non-exhaustive. Germany might try to argue the
derogation of consumer protection. In order to be successful, it must be proportionate and
necessary. In the case of Walter Rau, ECJ held that the rule cannot be justified as although it was
protecting the public interest but was in no way proportionate and there were many other less
intrusive ways of achieving that. Whereas in Buet, French Government’s actions were held to be
justifiable.
In Commission v France, it was held that the measure being taken should be proportionate to the
rule desired to be achieved. They must not be very different. A lot must not be done to achieve a
little. We will need to see whether Germany was infact proportionate in this case or not. German
authority’s act of impounding the wine is in no way justifiable and is not proportionate. Whereas,
the test that is being conducted is perfectly normal.

FMG Prop # 1

Uploaded by

Copyright:

Available Formats

FMG Prop # 1

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

FMG Prop # 1

Uploaded by

Copyright:

Available Formats

Bruschini, an Italian wine producer, enters into a contract to supply a quantity of red table wine to

You might also like