Trade between the European Union (EU) and the United Kingdom (UK) was

impacted by the UK's exit from the EU's Single Market and Customs Union and the

TCA's implementation. This essay examines the Kat's problems, the legality of the

authorities' actions, and the dispute resolution procedures allowed under EU

membership and the TCA.

Firstly, the issue is whether the conditions imposed by the French authorities amount

to a measure equivalent to quantitative restrictions (MEQRs) and whether this

MEQR could be exempted under Article 36 of the Treaty on the Functioning of the

European Union (TFEU) or the Cassis de Dijon principle.

Quantitative restrictions (QRs) and all measures having equal effects (MEQRs) on

imports are forbidden under Article 34 TFEU. A QR is any action that amounts to a

total or partial restraint on imports, exports, or items in transit and violates Articles

34. This prohibition is explicit and mandatory, and its enforcement does not call for

any additional action from the Member States or Union institutions. As a result, the

prohibition has an immediate impact and gives rise to personal rights that national

courts must uphold. Furthermore, it was emphasized in Dassonville that all trading

regulations passed by Member States that have the potential to impede intra-Union

trade directly or indirectly, actually, or potentially, are to be regarded as MEQRs.

In Dassonville, the Court of Justice of the European Union (CJEU) did not distinguish

between those national rules applicable only to imports, distinctly applicable MEQRs

and those national rules applicable both to imports and domestically produced

goods, indistinctly applicable MEQRs. National legislations prescribing or restricting

the contents or ingredients of various products was held to breach Art 34. In Gilli and

Andres1, an Italian legislation required all vinegar to be made from wine and in
1
Gilli and Andres (Case 788/79) [1981] ECR 2071
Greenham2 a French legislation prohibited the sale of any food or drink containing a

chemical substance called coenzyme Q10. In both cases, the CJEU held that such

restriction breached Article 34.

The aforementioned limits may, however, be waived in certain circumstances. Under

Article 36 there is no prohibition on imports, exports, or goods in transit that are

necessary to safeguard people, animals, or plant life and well-being, national

patrimony with artistic, historical, or artifacts value, or commercial or industrial

property, or that are supported by public morality, public policy, or public security.

In Toolex Alpha3, it was held that Article 36 justifies measures impacting the health

and life of humans, animals and plants. Defences tend be rejected because of lack

of evidence of a real health risk or failure to comply with the principle of

proportionality. In Commission v France4, it was established that where a particular

ingredient or additive has been restricted or prohibited altogether it should be proved

whether human, animal or plant health could still be protected by the simple

expedient of requiring manufacturers of products to label the ingredients in their

products clearly.

The TCA is a free trade agreement (FTA) founded on World Trade Organization

(WTO) regulations. Zero quotas are a component of the UK-EU 0,0 agreement under

Article 26. As a result, neither the UK nor the EU permit any prohibitions or

restrictions on the imports or exports of any goods. It should be noted that Article 26

is derived from the General Agreement on Tariff and Trade of 1994 (GATT 1994)'s

Article XI.

2
Greenham and Abel (Case C–95/01) [2004] ECR I–1333
3
Toolex Alpha (Case C–473/98) [2000] ECR I–5681
4
Commission v France (Case C–24/00) [2004] ECR I–1277
To this fundamental rule, the GATT offers exceptions. These exceptions allow for the

implementation of quantitative measures under specific circumstances and only

when they are justified by GATT-allowed policy considerations, such as severe food

shortages or balance of payment issues. These exceptions cannot be regarded as

unfair trade practices as long as they are used formally and in conformity with GATT

rules.

(ii) The second question is whether the German government's restriction is legitimate

under both EU membership and the TCA.

As discussed above, QRs and MEQRs on imports are forbidden under Article 34 of

TFEU. Additionally, under Cassis de Dijon, an additional set of exceptions that

Member States may invoke instead of Article 36 has been established. Referred to

as to the rule of reason, these derogations are known as mandatory requirements 5.

Under the TCA, zero quotas are allowed under Article 26. As seen above there are

exceptions to this principle in line with the GATT.

Applying the above legal reasonings, it can be argued that a surplus of organic dog

food on the German domestic market is not a valid ground for exception under Article

36 or the Cassis de Dijon principle. In parallel, a surplus, under the GATT and the

TCA is not a justifiable reason to impose a restriction. It can be pointed out that the

German authorities are in breach of EU law both under the EU membership and

under the EU-UK TCA. Thus, in both cases, the dispute settlement mechanisms

should be explored.

5
They include safeguarding public health, fairness in business dealings, consumer protection, enhancing
working conditions, safeguarding the environment, safeguarding culture, diversity in the press, maintaining
social security systems, safeguarding road safety, safeguarding fundamental rights, safeguarding children, and
combating crime.
(iii) The third matter in question is to ascertain if extensive hygiene inspections are

QRs or MEQRs and whether it can be qualified as an exception under Article 36 or if

it is only a disguised restriction on trade and an arbitrary measure.

As scrutinised previously, Article 34 prohibits MEQRs. Consequently, it was

determined that phytosanitary inspections 6 and rigorous inspections7 being distinctly

applicable MEQRs infringe Article 34.

Certainly, Article 36 of the TFEU provides for exceptions allowing for the imposition

of non-tariff barriers on imports and exports. Protection of plants is one exception. A

measure is justified provided it does what is necessary to achieve the objectives

under Article 36, and further that it does no more than necessary. If there are other

methods capable of achieving that objective which are less restrictive of intra-

community trade, then they should be used instead.

Usually where Article 36 is invoked, national measures introduced to protect against

alleged risks to human, animal or plant health are involved. When a particular

ingredient has been restricted or prohibited, the question of whether human, animal

and plant health could still be protected by the simple expedient of requiring

manufacturers of products to label the ingredients in their products clearly will be

asked. Where a Member State has a choice between various measures to attain the

same objective it should choose the means which least restricts the free movement

of goods as Article 36 must not be used as a disguised restriction to trade or an

arbitrary measure.

In parallel, Article 90 of the TCA incorporating Articles II to IX of the WTO Technical

Barriers to Trade Agreement 1994/95(TBT Agreement) allows states to introduce

6
Rewe-Zentralfinanz (Case 4/75) [1975] ECR 843
7
Commission v France (Italian Wines) (Case 42/82) [1983] ECR 1013
technical regulations and standards. Subject to aforementioned analysis, non-tariff

barriers are allowed if justified and pursuant to the legitimate objectives listed in

Article 2.28. Article 90 means that UK exporters need to meet each importer state

domestic technical requirements resulting in a heavy burden on UK manufacturers.

Moreover, Article 73 of the TCA follows the WTO Sanitary and Phytosanitary

Measures (SPS) rules and allows non-tariff barriers if they are in line with Article 2.2.

Adhering to the laws, it can be put forward that Poland’s imposition to conduct

extensive hygiene inspections before admitting the dog food because they contain

harmful microbes that might infect Polish trees can be an exception under Article 36

of the TFEU. Yet, the term ‘may’ is a strong indication that this measure could be an

arbitrary one and a disguised restriction on trade. Although the Polish authorities

genuinely assert that the ingredient is harmful to plants, it could still be protected by

requiring Kat to label the substances present in the dog food.

(vi) The next question to be tackled is the legitimacy of the imposed re packaging of

the dog food for abidance to national laws on consumer and environmental

protection by Danish authorities.

Previously highlighted, national laws relating to the re-packaging of products could

infringe Article 34 as it is an indistinctly applicable MEQR. They increase the costs of

manufacturers in other Member States, who will have to develop special packaging

processes purely for the importing State. It will also inhibit retailers in the State in

question from importing goods that do not comply with the national laws. Conversely,

it will be much easier for domestic manufacturers to comply with their own national

requirements as to packaging9.

8
Such legitimate objectives are national security requirements; the prevention of deceptive practices;
protection of human health or safety, animal or plant life or health, or the environment.
9
Walter Rau v De Smedt (Case 261/81) [1982] ECR 3961
As underlined above, Article 36 can be used as a derogation to Article 34 and one

exception listed is the protection of the environment. Still, Article 36 may not protect

a measure if, in reality, the measure is a disguised restriction on trade 10.

Similarly, under the rule of reason11 two of the mandatory requirements are consumer

and environmental12 protection. Nonetheless, it can be used as an arbitrary measure

hindering trade13. In the Danish Bottles case14, it was recognised that this exception

has a restrictive effect on the freedom of trade. Thus, they must not be discriminatory

and function as a disguised barrier to trade.

Article XX of the GATT provides for a chapeau clause underlining that although a

measure is justified under one of the above exceptions 15 it will not be accepted if it

constitutes arbitrary discrimination between countries or amounts to a disguised non-

tariff restriction to trade.

Besides, the TCA uses the concept of national treatment to support and limit trade in

commodities. When the UK operates in terms of free trade outside of the EU there

must be abidance to the GATT. Discrimination between like imported and

domestically produced items is forbidden under national treatment. TCA's Article 19

incorporates GATT's Article III stating that the principle applies to domestic taxation

as well as other types of governmental regulations.

Undoubtedly, the Danish authorities imposing re packaging of the dog food for

consumer and environmental protection could be an exception under the rule of

reason, articles 36 of the TFEU and 2.2 of the TBT Agreement. Yet, there are

10
Commission v UK (French Turkeys)
11
Derived under Cassis de Dijon
12
ADBHU (Case 240/83) [1985] ECR 531
13
Clinique Laboratories (Case C–315/92) [1994] ECR I–317
14
Commission v Denmark (the Danish Bottles case) (Case 302/86) [1988] ECR 4607
15
Article 73 TCA; Article 2.2 TBT
measures which are categorised as exceptions but are only a disguised means to

impose a restriction on imports. If re packaging in recycled plastic boxes is genuinely

necessary for consumer and environment protection then there is no breach. Still

such measure can be delineated as a disguised non-tariff barriers unless concrete

scientific proof is provided to support this claim.

(v) Lastly, the question that needs to be raised is whether low wages could be

categorised as a poor working condition thus being an exception under the rule of

reason.

As depicted before, enhancing working conditions is a mandatory requirement under

the rule of reason. In Oebel, the improvement of working conditions was added as a

mandatory requirement16. Where rules restricting trade are applied but they are

justified as a means to protect the workers employed in the specific industry, they are

allowed and do not breach EU law.

Under the mutual recognition principle established in Cassis de Dijon17, there is the

presumption that, once goods have been lawfully produced and marketed in one of

the Member States, they may be imported into any other State. However, this

principle can be rebutted although not easily, by reference to specific national

characteristics18.

Contrarily, under the TCA, there is no mutual recognition agreement and no

harmonisation of technical standards requirements. Moreover, there is no agreement

on competent designated testing body to avoid duplicate testing. This places a heavy

burden on UK manufacturers which will have to meet the regulatory requirements of

16
Oebel (Case 155/80) [1981] ECR 1993
17
Cassis de Dijon (Case 120/78) [1979] ECR 649
18
Commission v Germany (the Beer Purity case) (1987); Bellon (Case C–42/90) [1990] ECR I–4863; Aher-
Waggon (1998)
each importing Member State, as well as undergo conformity assessment 19 in the EU

by an EU accredited body. The TCA does, however, provide for a limited Supplier

Declaration of Conformity (SDoC) regime which is a written assurance by the

supplier of a low and medium risk product of conformity with the applicable technical

regulations of the importing EU Member State where the arrangement had existed

prior to the TCA. If the arrangement has not existed before the TCA, then the trader

cannot use SDoC.

Backed by the above analysis, it can be clearly demonstrated that under EU

membership there is a possible breach although the improvement of working

conditions is a mandatory requirement. If the dog food is lawfully produced and

accepted in other States then it can be imported into Greece. Nonetheless, under the

TCA, the principle of mutual recognition is not applicable as such Kat must ensure

that conformity assessments are conducted by an EU accredited body.

19
Article 93 TCA