Enterprise in Law project: EC law at Middlesex

Documents outline

The law school at Middlesex University was a participant in UKCLE’s Enterprise in Law project. Work focused on the development of materials for an EC law module, consisting of a case study where students advise a producer on the implications of exporting goods to other EU countries – see the overview for full details. This page gives a summary of the materials developed to support the case study, plus links to the materials themselves as RTF files.

Note: these materials can be downloaded and used or adapted as you wish. We would however request that you credit Penny English of Middlesex University as the original author, and UKCLE as publisher.

Setting the scene

Three documents set the scene for the students, and, for the pilot, represented the framework for the assessed coursework – download Setting the scene materials at the bottom of the page (RTF file, 4 pages, 136 KB):

• introduction to the company at the centre of the materials – NewFoods plc. The document is part of a report concerning the potential for export, and introduces the three countries, Dextra, Media and Sinistra, which feature later. Background factual information is included, such as the products the company produces (low fat dairy-based alternatives to cheese, butter and cream which contain the substance Neolip, developed by NewFoods).
• memo from the managing director of NewFoods to the head of the company’s legal team, where he expresses concern that there may be measures in place in the three target countries which could hinder their plans, and requests that the legal team investigate.
• reply from the head of the legal team, which suggests that there may potentially be some problems, which will be investigated. This formed the task for the module’s assessed coursework.

Country factfiles

The ‘factfiles’ provide background information about the three countries, indicating their different natures. This helps to explain the political, social and economic reasons for the measures the countries have introduced – download Country factfiles at the bottom of the page (RTF file, 6 pages, 128 KB):

• factfile: Dextra – a small landlocked country, possibly located in the Pyrenees. Relatively isolated, it has been dependent on small, family-owned dairy farming.
• factfile: Media – a prosperous country in northern Europe, with a distinctively Nordic feel. It may well occupy the space ascribed to Norway on traditional maps.
• factfile: Sinistra – located in eastern Europe (perhaps somewhere around the location of Bulgaria), and having recently emerged from Soviet domination has a legacy of sometimes over-bureaucratic state regulation.

The first seminar

Six documents relate to the first seminar, covering measures in place in each country which amount to charges having the equivalent effect to customs duties or discriminatory taxation – download Seminar 1 materials at the bottom of the page (RTF file, 8 pages, 238 KB):

• survey of agricultural business in Dextra – provides the background for the measures introduced by Dextra.
• newspaper report from the Dextran Daily News – builds on the previous report, indicating that there is political pressure from the dairy farmers which could lead the government towards taking protective measures. The issue of blockading transport links is also introduced.
• newspaper article reporting the government response to the problems in the agricultural sector. This is a sales tax, which is clearly discriminatory, as the tax is higher on low fat products. The background information has made it clear that this is going to have a greater effect on imports.
• press release from the government of Media – announces that Media is introducing a charge on imported dairy products (clearly a CEE, a charge having equivalent effect) in order to finance development in regions which have been economically disadvantaged as a result of the decline in the copper industry.
• newspaper article in the Media Messenger – comments on the press release.
• circular from the government of Sinistra – concerns the inspection of imported foodstuffs into Sinistra. It tables the charges for these inspections and explains the operation and rationale. Key points are that the charges are in the interests of the general good, not the importer, and are based on value of the consignment on a variable scale (not the cost of inspection). Two issues arise – the legality of the inspection itself (MEEs – measures having equivalent effect) are covered in the next section) and the charging for it (a CEE – charge having equivalent effect).

The second seminar

Five documents relate to the second seminar, concerning distinctly applicable measures having the equivalent effect to quantitative restrictions (Art 28 EC) – download Seminar 2 materials at the bottom of the page (RTF file, 5 pages, 28.2 KB):

• newspaper article – announces that all Dextran-produced food must be labelled ‘A quality food produced in Dextra – home of the best food in the world’. Clearly an MEE and not subject to the derogations in Art 30.
• newspaper article in the Media Messenger – this is a measure to control a potential spread of BSE. The article refers to the fact that the EU already has measures in place designed to control any potential spread of the disease. This is again a distinctly applicable MEE, but raises the question of derogations on the grounds of animal and/or human health, and whether it is compatible with the second paragraph of Article 30.
• editorial in the Media Messenger – reinforces the probably disproportionate nature of the measure.
• circular from the government of Sinistra – states that no foodstuffs imported into the Republic of Sinistra may contain artificial substances intended to be fat replacements. All dairy produce imported into the country will be inspected at the border to ensure compliance. Foodstuffs produced in Sinistra may include fat substitutes provided they are approved and licensed. The banning of imports of a class of foods seems to be a quantitative restriction. The inspections are something of a red herring, since they are in place to enforce the ban rather than an MEE in their own right. The internal system of licences raises the issue of whether there is an objective justification for the measures. The import ban could be justified under Art 30 – but is there sufficient doubt about the safety of such products?
• extract from an article in a scientific journal – outlines the results of clinical trials on Neolip (NewFoods’ fat substitute). Evidence suggests that there is some margin of doubt.

The third seminar

Six documents relate to the third and final seminar, all concerning indistinctly applicable MEEs – download Seminar 3 materials at the bottom of the page (RTF file, 6 pages, 573 KB):

• newspaper article from Dextra – yet more protection for the farmers! This introduces a measure which will only allow the term ‘cheese’ to be used for products which have been made using traditional methods and ingredients. This is an indistinctly applicable measure, which could potentially be permitted under the Cassis de Dijon mandatory requirements. However, on the basis of previous (genuine) cases, is unlikely to be permitted.
• press release from Media – advertising of products making claims to benefit health are to be restricted.
• report from advertising consultants – outlines the strategy needed to promote NewFoods products in the three countries. Key issue is the impossibility of penetrating the market without advertising which stresses the health benefits of the products.
• sample of the planned advertisement promotion of NewFoods’ products. It is clear that the selling point is the health benefits of the product.
• Sinistran Law from 1998 – restricts the sale of foods which are intended to meet a specific dietary need. Such foods must be sold through pharmacies. Clearly a ‘selling arrangement’ under Keck.
• circular from the government of Sinistra – makes it clear that this law will apply to foods designed for weight control.

Last Modified: 6 July 2010