Legal Opinions and Advice for EU Law -The Lovely Liquor Case Analysis

Assignment Task

Overview

Task 1 requires you to draft a written Opinion, as the assigned Advocate General in the Court of Justice, by answering a series of questions referred to the Court of Justice from a domestic court in the context of a (fictitious) case. 

Task 2 requires you to draft written legal advice as an EU lawyer to a company which seeks your expertise based on the (fictitious) case.

Task 1 - To draft an Opinion of the Advocate General

Fictitious Case 14/2022 The Lovely Liquor Company vs France [2022]

Facts of the case

On 9 ^th November 2022, a newly established Spanish company called ‘’The Lovely Liquor Company’’ was transporting 500 bottles of its best-selling product, ‘’Susan’s Super Sherry’’, from Spain to Germany via France. Susan’s Super Sherry is a budget Sherry which contains an alcohol content of 25 per cent. Susan’s Super Sherry is marketed and sold in Spain, Italy and Hungary, and the Lovely Liquor Company is keen to enter the German market.

After weeks of civil unrest, a series of planned demonstrations took place across France on 11 ^th November 2022 to raise awareness about ‘systemic racism’, alleged police brutality towards minorities, and the removal of statues of colonial figures. One such demonstration was taking place in the region of Burgundy. Permission had been granted by the French authorities to the demonstrators to congregate in Burgundy for a period of 8 hours. After 3 hours, however, the protest spilled out onto the A36 motorway toll-point (connecting Burgundy with the German border). To ensure the continuation and safety of the protesters, as well as road users, the French authorities closed the A36 motorway for 5 hours. As a result of the closure, The Lovely Liquor Company was unable to reach Germany at the scheduled time for its delivery of Susan’s Super Sherry.

Preliminary reference questions

1. What is the purpose of Articles 34-36 TFEU? What are the concepts of quantitative restrictions; measures having an equivalent effect to quantitative restrictions; what are the Treaty derogations and where are these found?; What are mandatory requirements? (Refer to the relevant case-law)

2. Would the closure of the A36 Motorway by French authorities constitute a quantitative restriction or a measure having equivalent effect to a quantitative restriction? What are distinctly and indistinctly applicable measures? In the instant case, was the closure of the A36 Motorway by French authorities discriminatory (distinctly) or non-discriminatory (indistinctly applicable)? Does this make a difference in terms of the justification for the restriction? If so, why?

3. Whilst Article 34 TFEU prohibits Member States from imposing rules which may restrict the free movement of goods, are Member States in breach of Article 34 TFEU when they fail to take positive steps to ensure the free movement of goods? Clarify with reference to Case 265/95 Commission v France and Case C-112/00 Schmidberger v Austria .

4. The French government claims that the closure of the A36 Motorway is justified on grounds of protecting fundamental rights. How are fundamental rights protected as part of the general principles of EU law and the EU Charter of Fundamental rights? In addition, what are the ‘sources of inspiration’ of fundamental rights; and what is the ‘field of application’ of EU fundamental rights? Refer to the relevant case-law.

5. Would the restriction of Article 34 TFEU by the French authorities in this case be justified, namely, whether the restriction pursues a legitimate aim and whether it has been exercised in a proportionate way? In other words, was the failure to ban i.e., decision to allow, the protest in Burgundy compatible with the free movement of goods? (Refer to the cases of Schmidberger and Omega )

You have been assigned as the Advocate General (AG) in the Court of Justice for this dispute. Your Opinion must answer the five questions referred to you by the French court. Your Opinion will not be legally binding on the final judgment of the Court of Justice but will be highly influential. As such, the Opinion must (i) explore all the legal issues (with reference to relevant legal provisions, doctrines, and case law) and (ii) provide definitive answers to the French national court, so that it can resolve the dispute at the domestic level.

(Please note that there is no need to repeat all of the facts of the case in your Opinion, just those facts that are relevant for the purposes of answering each specific question). All references, e.g. to case law, textbooks, and articles, must be cited using the Oxford University Standard for the Citation of Legal Authorities (OSCOLA).

Task 2 - To give legal advice

Facts

Recap - On 11th November 2022, a newly established Spanish company called ‘’The Lovely Liquor Company’’ was transporting 500 bottles of its best-selling product, ‘Susan’s Super Sherry’’, from Spain to Germany via France. Susan’s Super Sherry is a budget Sherry which contains an alcohol content of 25 per cent. Susan’s Super Sherry is marketed and sold in Spain, Italy and Hungary, and the Lovely Liquor Company is keen to enter the German market….

New issue  - On 12 ^th November, when ‘The Lovely Liquor Company’ eventually arrived in Germany, the German authorities issued a notice that the consignment of Susan’s Super Sherry could not be marketed and sold in Germany. The notice was issued by the authorities on the basis of German legislation which seeks to ‘protect public health’ so as to ‘avoid the spread of diluted alcoholic beverages which have the effect of inducing a tolerance towards alcohol for German citizens’. The German authorities assert that, whilst the legislation does not ban the sale of Sherry, it does prohibit the sale of Sherry that has an alcohol content of less than 30 per cent. 

Germany authorities

The German authorities claim that the restriction is permitted under EU. In any event, the German authorities argue that if the restriction is not permitted under EU law, then German legislation takes priority over provisions of EU law.

Legal advice

As a leading EU lawyer, you have been instructed by The Lovely Liquor Company to provide legal advice on: whether and on what basis: 

1. Would The Lovely Liquor Company be able to argue that the German legislation as being contrary to Article 34 TFEU; if so, on what basis?

2. Would Germany be able to justify the imposition of a minimum alcohol content (refer to the relevant case-law); if so, on what basis?

3. Would German legislation take precedence over provisions of EU law (refer to the relevant case-law); if so, on what basis?

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