European Union. Reasearch case on free movement of goods
Mrs. Barker vs. The Gamman Chancellor of JusticeAlfa is a member state in the European Union (EU). It has been a member since 1995, and is considered as something of a role model when it comes to abiding by the rules laid down in the EU treaties, as well as keeping public finances in order. Its social security system is modelled on the Nordic conception of the welfare state and its government ensures high quality health services, social services and other benefits commonly associated with the welfare state, which means that the total level of taxation of the citizens and registered business is high.Another aspect that testifies to the adherence to the idea of the Nordic welfare state is the government’s position on alcohol and drugs. The state owns a company that has a sales monopoly on alcoholic beverages. Up until recently, the state also had a sales monopoly on non-prescription pharmaceuticals. Recreational druguse is seen as a serious offense, and the use, sales or possession of illegal substances is subject to severe punishment under the law.Beatrice Barker is a dog breeder with many years’ experience in both breeding dogs, and training them. Mrs. Barker recently, in 2015, decided that she would expand her business in her hometown Dogville, situated in a region of Alfa which is very close to the borders of both Beta and Gamma, two other member states of the EU. Mrs. Barker’s idea was to train the dogs she breeds to become detection dogs, also called sniffer dogs,for drugs and explosives among other things. Her plan was initially to sell the trained dogs, and eventually, in the future, also the actual service of searching for the relevant substances.In orderto start the training, she needed to acquire the illegal substances that she wanted to train the dogs to discover. This meant that she needed to acquire small quantities of the relevant drugs, and store them in her office facilities. However, drug laws inAlfa are very strict and the purchase, sales and possession of the relevant substances is a criminal offence under the criminal code.After some consideration, she decided to train her dogs using a synthetic scent training product instead of the real substance.MrsBarker quickly became very successful in her new business endeavour and her dogs are very popular. She therefore decided to expand, and market and sell her dogs in the neighbouring states of Beta and Gamma. However, she quickly found out that in Gamma,there were laws making the sales of snifferdogs that had not been trained using the real substancesillegal. When she looked into the issue, she gathered that it seemed to have to do with a famous court case where the Minister for justice had been charged with possession of illegal substances. A sniffer dog, trained with synthetic scent training products, had indicated that the Minister for justice carried illegal substances upon his return from his holidays. He was charged but acquitted on appeal.Shortly thereafter, a law was passedto the effect that sellingdogs trained with synthetic scent training products was a crime under Gamman law, punishable with a fine of €100000, or two months imprisonment[Section 199b of the Gamman Criminal Code(GCC)].Furthermore, the Gamman Government issued an internal memo, laying out a policy, binding on all state and municipal authorities in Gamma, whereby all sniffer dogs used in any official capacity needed a certificate showing that they had been trained with authentic substances. Without a certificate to this effect, the dogs could not be used for searches by customs officers or law enforcement, or any other function of the state.Mrs Barker quickly realized that there was no point entering the Gamman market, since she wouldnot be able to sell her dogs as sniffer dogs there.But, then she had second thoughts and contacted a law firmThe lawfirm told Mrs Barker that one strategy would be to set up a "Euro-defence", which, according to the lawyers, meant that she would sellher dogs in Gamma and when/if she was caught by the police her argument would be that Section 199b GCC,prohibiting sales, iscontrary to her rights under EU law. The effect of that argument would be, again according to the lawyers, that she could not get sentenced for having violated Gamman law as long as it was hindering her right to rely on the freemovement ofgoods. Another option was, according to the same law firm, to try to find a company willing to import the dogs to Gamma, and then have that company sell the dogs. That way she would not stand the risk herself. A third option proposed by the law firm was to bring a case before the Constitutional Court of Gamma, claiming thatSection 199b GCC, as well as the internal policyrequiring a certificate were contrary to EU law. Mrs Barker quickly opted for the thirdoption, and filed such a complaint on 1 August2019.On 30 November2019the Constitutional Court of Gamma decided to stay the proceedings in the case of Barker vs. the Gamman Chancellor of Justice, and refer the following questionsto the Court of Justice of the EU under article 267 TFEU:1.Is a national rule, such as the rulein Section 199b of the GammanCriminal Code, prohibitingthe sales of detection dogs, also referred to as sniffer dogs,contrary to EU law?2.Is a government policy, such as the one in force in Gamma, prohibiting the use by all state agencies of detection dogs, also referred to as sniffer dogs, contrary to EU law?The order for reference was received by the Registrar of the CJEU who assigned it case number M-234/20. In accordance with article 23 of the Statute of the Court of Justice, the Registrar has notified the parties (Mrs Barker as applicant and the Gamman Chancellor of Justice as defendant)and invited them to submit written observations to the Court.
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