'The provisions of A34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or security, the protection of health and life of humans, animals, or plants, the protection of national treasures possessing artistic, historic or archaeological value or the protection or industrial and commercial property.'
- 1) public morality
- 2) public policy or public security
- 3) protection of health and life of humans, animals or plants
- 4) protection of national treasures possessing artistic, historic, or archaeological value
- 5) protection of industrial and commercial property
These are allowed because there is no EU army or health service to enforce these things.
General principles- list is exhaustive and unlikely to grow, objectives are non economic, narrowly construed, proportionate and MS must not abuse the derogation (A36 sentence 2 TFEU)
C34/79 Henn and Darby- the UK imposed an absolute ban on the import of ***********, even though domestic law did not ban absolutely the possession or even dissemination of such material. Henn and Darby were convicted of fraudulently evading this ban by importing *********** from the Netherlands to the UK. They argued that the ban was contrary to A30 EC (now A34 TFEU).
ECJ- the import ban is within A34 TFEU. It is for each member state to determine the standards of public morality in its territory. The important ban is not covered by A36 sentence 2 TFEU (abuse) as its purpose is to restrain the manufacture and marketing of ***********. Import ban is justified by A36 TFEU. Gives big margin in public morality. Case law didnt really stand.
C121/85 Conegate (Rubber Dolls)- Conegate imported life size inflatable love love dolls from Germany to the UK. UK customs seized the dolls.
ECJ- After looking at UK rules on *********** 'it follows that a MS may not rely on grounds of public morality to prohibit the importation of goods from other MS when its legislation contains no prohibition on the manufacture or marketing of the same goods on its territory.' Opposite to Henn. If didnt want dolls, shouldve banned domestic production. Dont have to follow precedent.
Henn and Darby 'v' Conegate- different outcomes. Distinction- are imported goods subject to an absolute ban treated more harshly than comparable domestic products? In Conegate the Court examined UK laws more closely than in Henn v Darby.
Public policy- potentially broad. ECJ: strict interpretation. C177/83 Kohll. This was to prevent it becoming a loop hole. ECJ- the justification must be made in its own terms and cannot be used as a vehicle through which to advance what amounts to a separate ground for justification.
C231/83 Cullert v Centre Leclerc- French legislation imposed minimum retail prices (MEQR) for fuel fixed primarily on the basis of French ex refinery prices and French refinery costs. France argued that in the absense of the pricing rules there would be civil unrest. They saw they couldnt argue that it wasnt an MEQR so attempted to argue public policy.
ECJ and AG- The French legislation constitutes a MEEQR in the sense of A34 TFEU. AG- if effective weapons of interest groups were accepted as justification, the existence of the four freedoms could no longer be relied upon. (principle). ECJ- F has not shown that changing legislation would have consequences on law and order and that it would not have the resources to deal with it. (fact)
Public security- EU has not authority to regulate security but it cannot just be an excuse. C72/83 Campus Oil- Irish law required importers of petrol into IRL to buy 35% of their requirements from a State owned refinery at prices fixed by the Irish government. The Irish argument was that it was vital for public security of IRL to be able to maintain refinery capacity of its own, and the challenged rule was the means of ensuring that the products of its refinery could be marketed.
ECJ- 'petroleum products, because of their exceptional importance as an energy source in the modern economy, are of fundamental importance for a countrys existence since not only its economy but above all its institutions, its essential public services and even the survival of the inhabitants depend upon them.' 'An interruption of supplies of petroleum products, with the resultant dangers of the countrys existence could therefore seriously affect the public security that A36 TFEU allows states to protect.' '
'A36 refers to matters of a non economic nature. However in the light of the seriousness of the consequences that an interruption in supplies of petroleum products may have for a countrys existence, the aim of ensuring a minimum supply of petroleum products at all times is to be regarded as transcending purely economic considerations and thus as constituting an objective covered by the public security.' Cant just apply to any products.
Proportionality- 'Measures adopted can be justified only if they are as such to serve the interest which that Article protects and if they do not restrict intra Community trade more than is absolutely necessary.' Considerations- Ireland is slightly isolated, and not in NATO. Probably wouldnt work for all Member States.
A346 and 347 TFEU.
Protection of health and life of humans, animals and plants-
The ECJ will closely scruitinise the measure in order to determine whether the protection of public health is the real purpose behind the MS's action, or whether it was designed to protect domestic producers. Case 40/82 Poultry Meat- Britain banned French turkey before Xmas on health reasons.
ECJ may have to determine if a public health claim is sustainable in circumstances where there is no perfect consensus on the scientific or medical evidence of particular circumstances. 174/82 Sandoz.
Public health- C174/82- Sandoz (Muesli Bars)- Netherlands refused to allow the sale of muesli bars which contained added vitamins, on the ground that these were dangerous to health. There was no scientific evidence and only EC legislation that touched on the issues of food additives.
ECJ- Is the public health claim sustainable in principle? In the absense of EC law it is for the MS to decide upon the appropriate degree of protection. Proportionality.
A34 TFEU Conformity test- basic headings for free movement question-
- A34 TFEU or A28 TFEU?
- Quantatitive restriction?
- MEEQR: Dassonville?
- Non discriminatory MEEQR- Cassis?
- Discriminatory MEEQR: A36 TFEU?
C367-8/91 Keck and Mithouard- According to the French competition regulation it is not allowed to sell goods at a price which is lower than their actual purchase price (resale at a loss). Keck and Mithouard were prosecuted for having resold imported coffee and aperitif in their supermarkets at a loss. Is the prohibition an MEEQR?
Characteristics of goods
Keck- ECJ- increasing tendency of traders to invoke A34 TFEU as a means of challenging any rules whose effect is to limit their commercial freedom. They upheld the Cassis regulations, laying down requirements to be met by goods (regulations re designation, form, size, weight.) MEEQR, even if applied without discrimination, unless justified by public interest objective.
ECJ- 'contrary to what has previously been decided' 'certain selling arrangments' shall no longer be regarded as hindering State trade within the meaning of Dassonville. They dont have to use precedent. Doesnt happen that often. In Keck this was a selling arrangement.
Important differentiation: regulations re the characteristics of goods are still covered by A34 TFEU and regulations re certain selling arrangments are no longer covered by A34 as long as they apply equally to all traders and have the same effect on imported and domestic goods.
Previous case law on 'certain selling arrangements'-
- Rules providing the compulsory closing of shops: C401-2/92 Tankstation THeukske
- Limited ban on advertising concerning certain products or sectors- Leclerc Siplec C412/93
- Ban on advertising of products typical for pharmacies outside pharmacies C292/93
Characteristics of goods
Regulations concerning the characteristics of the goods-
- prohibition of a certain product classification C315/92 Clinique
- Obligation to stipulate certain data (eg alcohol units) on the product C317/92 Commission v Germany
C368/95 Familiapress- Austrian law prohibited the publication of magazines with crossword puzzles for which the winners would recieve prizes. Familiapress, an Austrain publisher, sought to restrain the Heinrich Bauer Verlag, a German publisher, from including such prize competitions in their publications. Was this a selling arrangment? This isnt easy to know.
ECJ- 'even though the relevant national legislation is directed against a method of sales promotion, in this case it bears on the actual content of the products, in so far as the competitions in question form an integral part of the magazine in which they appear.' Very instructive.
Post post Cassis jurisprudence- the ECJ does not differentiate between discriminatory measures on one hand and non discriminatory measures on the other hand. The court simply uses the notion of restraint (entrave, Beschrankung) of the free movement of goods (apply Dassonville..
... and Keck).
The court accepts all mandatory requirements as justification for restraints. The court extended the spectrum of mandatory requirement. The court applies an autonomous interpretation of notions such as 'consumer protection' disregarding national criteria. The court applies a strict proportionality test.
C120/95 Decker- Mr Decker, resident of Luxembourg, had glasses made by an optician in Belgium and the bill sent to his Luxembourg health insurance. The insurance company refused to pay because the purchase 'abroad' had not been permitted in advance.
ECJ- considers this a restraint of the free movement of goods as the import of glasses was hindered. The argument of the Luxembourg government, that the financial balance of the national insurance system and therefore of the national health system of a small country would be disturbed (a mandatory requirement) was accepted as a possible justification. However it did not apply in this case.
Problem question tests
- Dassonville formula
- Keck- measure re product characteristics (not re circumstances of sale, unless discriminatory)
- Justification- A36 TFEU or mandatory requirements (Cassis)
This test does not provide a reliable prognosis about the conformity of a measure in every case but is a good base.