Attempt only ONE of the two questions below:
- Critically comment on the judgment of the CJEU in the case of М.А. v Stolichna obshtina, rayon „Pancharevo“ (ECLI:EU:C:2021:1008)
The case commentary should have an introduction and a conclusion and should be structured in three parts:
- case facts (ie procedural history, relevant law, issues in the case, arguments of the parties, legal background and interpretation of the law) – 25 marks;
- judgment (opinion of the AG (if relevant), judgment and rationale) – 25 marks;
- critical analysis of the judgment – 50 marks.
The following is a hypothetical situation. Your research should only be addressed to the legal scenario described in this question.Gunther runs UberChoc GmbH (‘UberChoc’), a German company, which makes specialty chocolates. It has developed a new range of chocolates infused with alcohol (rather than traditional liquors of hollow chocolate shells containing liquid alcoholic centers). The alcoholic content of the new chocolates is between 2% and 5%.
UberChoc also manufactures alcoholic drinks made from spirits (gin, vodka, etc.) and ready mixed with real fruit juice.
Gunther has tried to export his alcohol products to France but has encountered the following problem with the French authorities, namely that:
- a) all alcoholic fruit drinks sold in France (whether imported or produced in France) are subject to a standard rate of duty at 20% of the wholesale price of the products. The duty paid on imported products has to be paid to the French authorities at the point of entry into France. The duty on alcoholic fruit drinks produced in France must be paid within 30 days after the sale to the consumer in France.
Furthermore, UberChoc has been informed that their chocolates exported to France will be subject to the French (imaginary) Décret no 2350-2022 du 13 May 2022 relatif à la vente au détail de produits alimentaires alcoolisés (Decree nr 2350-2022 of 13 May 2022 on Retail Sale of Alcoholic Food) (‘the Decree’) which requires that:
- all alcoholic food, whether imported or domestically produced, be sold only in licensed premises. This can include supermarkets that are licensed to sell alcohol, but the alcoholic chocolates will have to be sold in that part of the supermarket where alcoholic drinks are sold (not in the food sections); and
- all alcoholic food, whether imported or domestically produced, be labelled with obvious warnings about the health risks associated with consuming alcohol.
- answer the following questions
- Can Gunther challenge the 20% duty on alcoholic fruit drinks on the ground of either Article 30 or 110 TFEU?
- Can Gunther challenge the requirement under the French Decree that all alcoholic food be sold only in licensed premises on the ground of its incompatibility with Article 34 TFEU?
- Is the French legal requirement that all alcoholic food be labelled with obvious warnings about the health risks associated with consuming alcohol compatible with Article 34 TFEU and, if not, can it be justified either under Article 36 TFEU or under Cassis de Dijon?
