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Samenvatting Probleem 5 uitwerkingen European Law
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Probleem 5 European LawLeerdoelen:
(1) When does national regulatory legislation hinder the free movement of goods within the EU?
(2) Can national laws (of a non-tariff nature) that hinder the free movement of goods be derogated (i.e. any
exceptions/justifications possible)?
pp. 349-356
Articles 34-37 and 45-66 TFEU contain several provisions on the free movement of goods, persons, services and capital. These are often
referred to as the four fundamental freedoms:
- Free movement of goods
- Free movement of (natural and legal) persons
- Free movement of services
- Free movement of capital
The four fundamental freedoms relate to the essential factors of production. For any functional market these production factors need to
be able to move freely and thus, without barriers, within that market. Given the EU’s desire to create an internal market, it makes
perfect sense to strive for free movement of these production factors between the member states. In addition, the EU also seeks to
bring about ‘an ever closer union among the people of Europe’. This is arguably facilitated by making it easier for the people of Europe to
travel between the member states and take up residence in another member state. These two objectives clearly explain why the
fundamental freedoms are enshrined (verankerd) in the Treaties.
The prohibition of discrimination, or unequal treatment, on the grounds of origin or nationality (op grond van afkomst of nationaliteit) is
a central feature of the Treaty provisions and legislation and case law concerning the establishment of the internal market. A measure
that explicitly differentiates between domestic and imported products or between domestic workers and workers from other member
states constitutes overt discrimination.
- Overt discrimination, which is also referred to as direct discrimination, goes against the very essence of the internal market
and is therefore almost always prohibited. The existence of overt discrimination can be established on the basis of a simple
legal analysis of the measure in question. After all, when a rule only applies to imported products or when a member state only
grants a certain advantage to its own nationals, this is usually abundantly clear from the wording of the rule. A simple reading
of the relevant legal provisions will be enough to identify the discrimination.
In addition, certain measures that do not explicitly differentiate between domestic and imported products or between domestic and
foreign workers may nevertheless put imported products or foreign workers at a disadvantage. A language requirement for workers is an
example of such a measure.
- It can nevertheless lead to covert discrimination, also referred to as indirect discrimination.
A measure that has a greater of different impact on foreign products or workers than on domestic products or workers may form an
obstacle to free movement, even if it does not involve overt or direct discrimination. Such obstacles are prohibited, unless they can be
objectively justified. This legal framework is primarily a product of the case law of the Court of Justice.
Scope of the fundamental freedoms
The very title of the provisions on freedom of movement implies a restriction (een beperking van hun reikwijdte) of their scope. In
principle, they only apply to the free movement of goods, persons, services and capital between member states. The application of the
Treaty provisions on freedom of movement thus requires a cross-border element, which exists when a good, person, service or capital
crosses the border between two member states. A case in which there is no cross-border element is referred to as a ‘purely internal
situation’.
Two reasons can be advanced in support of the purely internal situation doctrine.
1. The first – pragmatic – reason is that the Court of Justice simply wished to avoid having to rule on the compatibility of (almost) all
national rules (verenigbaarheid van nationale regels) concerning goods, persons, services and capital, which would have increased its
workload exponentially.
2. The second – more fundamental – explanation has its origin in the limited transfer of sovereignty (beperkte
soevereiniteitsoverdracht). In this context, it can be argued that the member states only agreed to transfer sovereignty to the Union and
thus subject themselves, inter alia, to the provisions on freedom of movement insofar as trade between member states is concerned
(alleen te onderwerpen aan bepalingen over vrij verkeer voor zover het handel tussen lidstaten betreft ).
The wholly internal situation, U-turns, reverse discrimination and abuse of EU-law
- A so-called U-turn: this manoeuvre entails making use of the freedom of movement for the sole purpose of ensuring the
application of EU law in order to circumvent national law (met als doel toepassing van EU-recht te waarborgen en nationaal
recht te omzeilen). In such cases, the member state against which EU law has been invoked must prove that the U-turn was
performed for the purpose of circumventing national rules and thus qualifies as abuse of (EU) law.
- U-turns are often prompted by reserve discrimination, which exists when a state imposes stricter conditions on its own
nationals than on the nationals of other member states.
- The U-turn and purely internal situation doctrines are closely linked to the abuse of EU law doctrine and its procedural
counterpart (tegenhanger): a request for a preliminary ruling on a hypothetical question.
Reverse discrimination, equality and harmonization
Why would a member state wish to put its own nationals at a disadvantage compared to the nationals of other member states? The
Pistre case reveals that there can actually be valid reasons for doing so:
, - Imposing stricter rules on domestic producers can sometimes be beneficial for the image – and sales – of a particular product.
A rule that results in reverse discrimination without creating any benefits for national producers, as in Mathor will continue to give rise
to a purely internal situation.
Restrictions resulting from purely internal situation can thus only be addressed on the basis of a principle of national law relating to
equality or non-discrimination or via harmonization under EU law (Beperkingen die het gevolg zijn van een zuiver interne situatie kunnen
dus alleen worden aangepakt op basis van een beginsel van nationaal recht inzake gelijkheid of non-discriminatie of via harmonisatie
onder het EU-recht).
The requirement of a sufficient causal link between the measure and the obstacle ( verhindering) of the free movement
A national measure is thus only subject to the rules on freedom of movement if a sufficient causal link exists between the measure and
its impact on free movement. In other words, a national measure must potentially give rise to an obstacle to trade in order to fall within
the scope of the TFEU. From the viewpoint on a member state, this means that they should take account of the possible effects on trade
that a measure may cause, but there are clearly limits to this causation.
Free movement of goods: tariff and non-tariff restrictions
The free movement of goods is protected against so-called tariff and non-tariff restrictions or barriers. Article 30 and 110 TFEU relate to
restrictions of a financial nature, while art 34-36 apply to all other restrictions.
Despite its great significance, the term ‘goods’ is not defined in Title I of Part Three of the Treaty. Nevertheless, it should be clear that
this term at least covers all physical objects. Objects with a negative value, such as waste that is generally removed at the seller’s
expense and objects whose value cannot be measured, such as art, also fall into this category.
372-382
Partly in order to deal with the ever-changing environment in which the law has to be applied, the Court of Justice has
developed the so-called Cassis justification, which is not limited to a fixed list of grounds for restricting free movement and
may therefore in principle also be invoked to justify the protection of interests that have not already been recognised in
the case law of art 36 TFEU.
Spanish Strawberries: social unrest could never serve as a justification for restricting the free movement of goods.
Article 36 TFEU is also subject to a Sperrwirkung, which means that member states can only invoke the grounds listed in
the article to the extent that the subject matter in question has not yet been harmonized. If the objective that a national
measure seeks to protect has already been harmonized by means of secondary Union law, the appropriate assessment
framework is the relevant harmonization measure, not Article 36 TFEU.
In its landmark judgment in Cassis de Dijon, the Court of Justice harked back to its aforementioned reasoning in Dassonville
concerning reasonable requirements and created the so-called Cassis justification. The case concerned an attempt to
prevent the importation of this French liqueur into Germany on the basis of a German rule concerning the minimum
alcohol content of alcoholic beverages. The inspiration for this slightly peculiar rule was the maybe even more peculiar
desire to product German consumers from spirits containing too little alcohol, which might induce a tolerance towards
alcohol. In addition, the rule was meant to tackle unfair trade practices. In this regard, the German government pointed
out that excise duties were often the biggest component in the price of alcoholic beverages and that there was thus an
incentive to reduce their alcohol content. At the outset, the Court of Justice noted that no common (harmonized) rules
relating to the production and marketing of alcohol had so far been adopted at European level. Under these circumstances,
it continued:
E-lesson on art 34 TFEU
The European Treaties prohibit two categories of measures that unjustifiably restrict the free movement of goods:
1. Tariff restrictions (also known as ‘fiscal barriers’) in Articles 30 and 110 TFEU, and
2. Non-tariff restrictions (also known as ‘regulatory barriers’) in Articles 34 (imports) and 35 (exports) TFEU. Article 35 TFEU is discussed
in another E-Lesson (E-Lesson on 'Free movement of Goods Part III: Article 35 (exports) TFEU).
This E-Lesson on non-tariff restrictions in Article 34 TFEU will elaborate on the overall picture as to the current status of the law on non-
tariff restrictions: what constitutes such a measure and, if such a measure exists, how can a Member State justify it? How can a Member
State fall under an exception?
Terminology
This E-Lesson uses terms which should help you identify an MEEQR (a Measure having an Equivalent Effect to a Quantitative Restriction)
in a potential case study (explained later on in this E-Lesson).
Also, the following terms are interchangeable (‘inwisselbaar’) with each other:
‘imperative requirement’ and ‘mandatory requirement’;
‘mandatory requirements in the general interest’ and imperative requirements in the general interest’;
‘express justification’ and ‘justification mentioned in the treaty’;
‘implied justification’ and ‘justifications mentioned in case law’.
A ban on a product is an example of a non-tariff restrictions.
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