problem question: Country A, an EU member state, passes the Protection of the Fo

problem question: Country A, an EU member state, passes the Protection of the Foetus Act (2021). The Act makes it a crime for anyone to perform medical procedures to terminate pregnancy in Country A unless they are a medical professional registered to and supervised by the National Medical Association (NMA) of Country A. The termination of pregnancy is only permitted where: (a) pregnancy is the result of a criminal act and/or (b) pregnancy poses a danger to the life or physical health of a pregnant woman. The Act provides no other grounds to justify the termination of pregnancy. The sale and/or importation and/or marketing of items for and/or circulation of information to facilitate the termination of pregnancy in breach of the Act is prohibited. Anyone who knowingly performs or in any other way facilitates the termination of pregnancy in breach of the Act commits an offence punishable by a fine of €10,000 and/or imprisonment for three years. It justifies the Act based on fundamental rights, particularly the fundamental right to life.
Amina is at the very early stages of pregnancy she wishes to terminate. The pregnancy is not the result of a criminal act and does not pose a danger to her life or physical health. She cannot find a medical professional in Country A who will terminate her pregnancy.
Doctors for Women Rights (DWR) is a charity registered in and operating from Country B, another EU member state. DWR campaigns for the right of women to make decisions over the termination of pregnancy with minimal restrictions from the state. It produces content on YouTube on the rights of women to make decisions about the termination of pregnancy. Its videos on YouTube include a link to a website, operated by the charity, where women can, for a very discounted price, purchase pills (known as medical abortion pills) to terminate pregnancy at its very early stages under the remote supervision of a medical professional licensed and supervised in Country B. These pills are lawful in Country B and can be safely administered at home by users. DWR starts targeting its video content on YouTube to women audiences in Country A. Along with this content (which is free to upload on YouTube), the charity also purchases adverts on YouTube about the services it offers on its website to terminate pregnancies, which it also targets at women in Country A.
Amina sees a video from DWR on YouTube. She clicks on a link attached to the video, which takes her to a website where she orders and pays for medical abortion pills to terminate her early pregnancy under the remote supervision of medical professionals from DWR based in Country B. DWR dispatches Amina’s order to Country A, but the content of the package is discovered and seized by Customs officials for breaching the Protection of the Foetus Act.
The government of Country A notices that the YouTube videos of DWR are viewed extensively and its website receives a lot of traffic from women in Country A. Accordingly, the government issues an order to YouTube directing it to block DWR’s content in Country A that advertises or promotes services for the termination of pregnancy in breach of the Act. It also orders internet service providers in Country A to block access to DWR’s website because it facilitates the termination of pregnancy in breach of the Act. YouTube and internet service providers comply with the orders.
Amina and women’s rights groups in Country A organise a massive protest against the government orders. Kara, a medical professional from Country B who volunteers for DWR, travels to Country A to show solidarity, and join the protest. She and Amina circulate leaflets showing how to go around the government internet restrictions and access DWR’s website and YouTube content. The leaflets are seized by police officers and Kara and Amina are arrested for breaching the Act.
Assess the extent to which measures taken by Country A against DWR’s YouTube Content and website, Amina, and Kara are compatible with EU law on the free movement of goods and services.
order instruction: pls you are to demonstrate knowledge in free movements of goods and services. i will send more information on the instructions through message and uploaded files.
sources that might be useful:
Arts 26-33 TFEU
Art.110 TFEU
Art.60(2)
Arts 34-36 TFEU
European Commission Directive 70/50 on the abolition of measures having equivalent effect to QRs (OJ Sp Ed 1970, I L13/29 p17)
European Commission Communication concerning the consequences of Case 120/78 Cassis de Dijon (OJ 1980 C256/2)
(Note: Both of the above-mentioned Commission instruments are contained in Blackstone’s EU Treaties & Legislation).
Case 8/74 Dassonville [1974] ECR 837
Case 120/78 Rewe Zentral AG (Cassis de Dijon) [1979] ECR 649
Case C-267-8/91 Keck and Mithouard [1993] ECR I-6097
Case C-110/05 Commission v Italy (Motorcycle trailers) [2009] ECR I-519
Case C-142/05 Mickelsson [2009] ECR I-4273
Arts 49-62 TFEU
Art 18 TFEU
Case 2/74 Reyners [1974] ECR 631
Case C-55/94 Gebhard [1995] ECR I-4165
Case C-212/97 Centros [1999] ECR I-1459
Case C-438/05 Viking Line [2007] ECR I-10779
Freedom to provide and receive services:
Case 33/74 Van Binsbergen [1974] ECR 1299
Joined Cases 286/82 & 26/83 Luisi and Carbone [1984] ECR 377
Case C-76/90 Säger [1991] ECR I-4221
Case C-159/90 SPUC v Grogan [1991] ECR I-4685

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