Introduction
This essay examines the legal position of SweetLife, a confectionery company based in State X, under European Union (EU) law, in response to restrictive national measures imposed by States Y and Z, both EU Member States. SweetLife, a well-established company with over 100 years of operation, relies on traditional recipes with high sugar content, which conflicts with State Y’s proposed legislation limiting sugar in foodstuffs to 1%. Additionally, State Z has introduced regulations requiring confectionery to be sold from closed cabinets without visible information, limiting marketing and accessibility. Both states justify their measures on public health grounds, citing concerns over sugar overconsumption. This analysis will explore SweetLife’s rights under EU law, focusing on the free movement of goods, specifically Articles 34 and 36 of the Treaty on the Functioning of the European Union (TFEU), and relevant case law. The essay will assess whether these national restrictions constitute barriers to trade and if they can be justified under EU law, ultimately advising SweetLife on potential legal recourse.
Free Movement of Goods under EU Law
The principle of free movement of goods is a cornerstone of the EU internal market, enshrined in Articles 34 and 35 TFEU, which prohibit quantitative restrictions on imports and exports and all measures having equivalent effect between Member States. For SweetLife, the measures in States Y and Z arguably infringe upon this principle. Article 34 TFEU is particularly relevant as it addresses barriers to imports, which applies to SweetLife’s sales in State Y (where it has operated for decades) and planned expansion into State Z. The concept of “measures having equivalent effect” was clarified in the landmark case of *Dassonville* (Case 8/74), where the European Court of Justice (ECJ) held that any national measure capable of hindering, directly or indirectly, intra-EU trade could contravene Article 34 TFEU (Craig and de Búrca, 2020). State Y’s sugar content restriction, by imposing a compositional requirement that SweetLife cannot meet, effectively prevents the import of its products. Similarly, State Z’s requirement to conceal confectionery behind counters without visible information restricts marketing and consumer access, likely reducing sales potential.
Furthermore, the ECJ’s ruling in Keck and Mithouard (Cases C-267/91 and C-268/91) distinguishes between product requirements and selling arrangements. Product requirements, such as State Y’s sugar limit, are generally caught by Article 34 TFEU as they necessitate changes to the product itself. Selling arrangements, such as State Z’s display rules, fall outside Article 34 TFEU if they apply equally to domestic and imported goods and do not disproportionately affect imports. However, SweetLife could argue that State Z’s rules, while appearing nondiscriminatory, disproportionately hinder imported confectionery due to reduced visibility and marketing opportunities compared to local products with established consumer recognition (Barnard, 2022). Thus, both measures prima facie breach Article 34 TFEU and require justification.
Justifications for National Restrictions under Article 36 TFEU
Despite the apparent breach of free movement rules, Member States may justify restrictions under Article 36 TFEU on grounds such as the protection of public health. Both States Y and Z cite health concerns related to sugar overconsumption, aligning with a recognised exception under Article 36 TFEU. The ECJ has consistently upheld public health as a legitimate aim, as seen in *Commission v United Kingdom (Re UHT Milk)* (Case 124/81), where national measures restricting imports were permitted if genuinely aimed at protecting health (Craig and de Búrca, 2020). However, such measures must be proportionate and necessary, meaning there must be no less restrictive alternative to achieve the same objective.
For State Y, the 1% sugar limit is a drastic measure. SweetLife could argue that less restrictive alternatives, such as mandatory health warnings or taxation on high-sugar products, could achieve public health goals without banning its goods outright. The ECJ in Cassis de Dijon (Case 120/78) established that national measures must not be disguised restrictions on trade, and SweetLife might contend that State Y’s rule effectively excludes its products without clear evidence that a 1% sugar cap is essential for health outcomes. Indeed, the lack of flexibility in compositional standards raises questions about proportionality, especially given SweetLife’s long-standing presence in State Y’s market (Barnard, 2022).
State Z’s display restrictions, while less directly intrusive, must also pass the proportionality test. Concealing confectionery behind counters with no visible information could be seen as an excessive barrier to consumer choice. SweetLife might argue that less restrictive measures, such as limiting shelf space or requiring health warnings at the point of sale, could address health concerns without such a severe impact on trade. The ECJ has often scrutinised national measures for proportionality, as in Commission v Italy (Trailors) (Case C-110/05), where overly restrictive rules were struck down for lacking necessity (Weatherill, 2016). Therefore, SweetLife has a plausible case that State Z’s measures exceed what is necessary for public health protection.
Harmonisation and Mutual Recognition
Beyond Article 36 TFEU, SweetLife should consider the principle of mutual recognition stemming from *Cassis de Dijon*. This principle requires Member States to accept goods lawfully marketed in another Member State unless there are overriding reasons (e.g., public health) to refuse them. Since SweetLife’s products are lawfully produced and sold in State X, States Y and Z must justify why they cannot accept these goods under their national rules. State Y’s compositional requirement directly challenges mutual recognition by imposing a uniform standard that disregards State X’s regulations. SweetLife could argue that its products, while high in sugar, meet State X’s safety and quality standards, and thus should not be outright banned in State Y without compelling health evidence (Barnard, 2022).
Additionally, EU harmonisation measures, such as food safety and labelling regulations (e.g., Regulation (EU) No 1169/2011 on food information to consumers), set common standards across Member States. While there is no specific EU-wide sugar content limit for confectionery, SweetLife could advocate for harmonised rules or challenge national deviations as fragmenting the internal market. However, public health remains a Member State competence under Article 168 TFEU, limiting the scope for EU intervention unless trade barriers become excessive (Craig and de Búrca, 2020).
Practical Implications and Legal Recourse for SweetLife
SweetLife has several options under EU law to challenge the measures in States Y and Z. Firstly, it could initiate proceedings through the national courts of State Y or Z, seeking a preliminary reference to the ECJ under Article 267 TFEU to clarify the compatibility of these measures with Articles 34 and 36 TFEU. Alternatively, SweetLife could lobby State X to raise the issue with the European Commission, potentially triggering an infringement action under Article 258 TFEU against States Y and Z for breaching EU law. The Commission has historically acted against disproportionate national health measures, as seen in *Commission v France (Foie Gras)* (Case C-184/96), where trade barriers were deemed unjustified (Weatherill, 2016).
Moreover, SweetLife might explore adapting its business strategy temporarily, such as reformulating products to meet State Y’s sugar limit or enhancing alternative marketing strategies in State Z to mitigate the impact of display restrictions. However, such adaptations could undermine its traditional recipes and brand identity, making legal challenge a preferable long-term solution.
Conclusion
In conclusion, SweetLife faces significant barriers to trade under the national measures imposed by States Y and Z, which prima facie breach the free movement of goods under Article 34 TFEU. While both states invoke public health under Article 36 TFEU as justification, SweetLife can argue that the measures—particularly State Y’s 1% sugar limit and State Z’s display rules—are disproportionate and fail the necessity test, as less restrictive alternatives exist. Drawing on principles of mutual recognition and ECJ case law, SweetLife has a strong basis to challenge these restrictions through national courts or via the European Commission. The broader implication is a tension between national public health autonomy and the EU’s internal market objectives, a balance that SweetLife must navigate strategically. By pursuing legal recourse, SweetLife can defend its market access while contributing to clarifying the scope of permissible national health measures under EU law.
References
- Barnard, C. (2022) The Substantive Law of the EU: The Four Freedoms. 7th edn. Oxford University Press.
- Craig, P. and de Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th edn. Oxford University Press.
- Weatherill, S. (2016) Cases and Materials on EU Law. 12th edn. Oxford University Press.
