DEROGATIONS

Question 1

DEROGATIONS

Answer 1

• these are defending DAMs
• in the absence of EU harmonising legislation QRs and MEQRs falling with in the prohibition of art 34 or 35 TFEU can be justified under art 36 TFEU which provides and an exhaustive list of derogations:
• public morality
• public policy and security
• protection of health and life of humans animals and plants
• protection of national treasures
• protection of industrial or commercial property
• and subject to the principles of non discrimination and proportionality

Question 2

PUBLIC MORALITY

Answer 2

• case 34/79 henn and Darby (porn films and mags)
• prohibition on importing pornographic materials
• no lawful trade in such goods
• prohibition justifies on grounds of morality
• case 121/85 conegate
• seizure of life size inflatable dolls
• not permitted to display in public but can be sold in UK
• could not be justified

Question 3

PUBLIC POLICY AND PUBLIC SECURITY

Answer 3

• public policy: narrow interpretation consumer protection doesn’t fall under this derogation
• case 72/83 campus oil

Question 4

PUBLIC HEALTH

Answer 4

• 174/82 sandoz
• 124/81 (UHT MILK)
• 40/82 (turkeys) UK banned turkeys from France claiming Newcastle disease outbreak but really disguise to protect their own market measure was not appropriate to degree of risk
• there must be a real genuine risk with scientific and medical evidence
• part of a serious health policy rather than protectionist measure