Eu Problem Question Model

I. Introduction

The Italian government’s declaration that “replica t-shirts can only be sold in official football club shops situated in the clubs’ premises or stadiums” brings about several issues in regard to the free movement of goods as captured within Art 34 of the TFEU. This essay will examine the restriction on the free movement of football t-shirts through the case-law elaborating upon Art 34 and 36 of the TFEU.

II. The Problem

The issue here is whether the declaration that “replica football t-shirts are only permitted to be sold in official shops in clubs” premises or stadiums’ violates Art 34 of the TFEU, and if so, whether the Italian government can successfully plead a defence under At 36 of the TFEU.

While the declaration might seem to violate the principle of freedom of establishment under Art 49 of the TFEU in form, it does not do so in substance – the main issue here is the restriction on the sales of the replica t-shirts, not the establishment of official football club shops.

III. CSA and Art 34:

In the problem, the Italian government has declared that ‘replica t-shirts can only be sold in official football club shops situated in the clubs’ premises or stadiums’. This measure is likely to be classified as a selling arrangement under EU Law. The CJEU set out the concept of a selling arrangement in Keck and Mithouard (1993) at [16]:

“ (…) provided that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and fact, the marketing of domestic products and those of other member states.”

The measure applies to all shops selling replica football t-shirts within Italy – it applies to Italian football clubs as well as “those in England and Spain”. However, it does not affect all traders equally, in fact and in law – while “Arsenal FC, a London club, sees their sales of replica t-shirts in Italy dry up because they do not have their own shop”, an...