Critical analysis of the rules of ECJ on free movement of goods
Introduction
The free movement of goods, together with free movement of services, capital and free movement of persons forms the four freedoms that were outlined by the European Communities inception in 1957 under the treaty of Rome[1]. The European Court of Justice (ECJ) regards the free movement of goods as a fundamental freedom, but other policies such as need for environmental protection and social policies have shaped the nature of European Union. According to Article 28 EC treaty, the ‘quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states’. National governments that aim at protecting their domestic industries and economies from competition often violate the free movement of goods[2]. The ECJ acknowledged in the case of ‘Cassis de Dijon’ that there may be reasons that may be used by the EU member states to derogate from free movement of goods other than the reasons included under Article 30 of EC. Article 34 and 35 of TFEU provided for free movement and ECJ applied strict measures in determining the justifications of member states in restricting the free movement of goods[3]. For instance, the case of Commission v, Italy outlined that goods consist of products that can be valued in monetary terms and that can enter into commercial transactions[4]. The works of art, electricity, and natural gas that are not defined as money consist of goods, but services are excluded. Article 30 of EC lists the restrictions of importation and exportation of goods and member states willing to use the measures must prove the proportionality by demonstrating that the restrictions are not aimed at protecting the internal market or acquiring economic gain. The restrictions to free movement of goods include the protection of health and life, public security, public morality, public policy and protection of national treasurers[5].
Aims
The research study will identify the measures and case laws that ECJ has developed in upholding the principle of free movement of goods within the EU common market. The research study will analyse some of the case law that aim at protecting the environment that have upheld the national measures in derogating from the free movement of goods.
Objectives
The objectives of the research study is to critically analyse ECJ rules in free movement of goods in EU and understand whether ECJ rules have furthered the fundamental freedom of free movement of goods or there are exceptions that have provided member states the right to derogate from the Treaty. The research study will be critical in understanding the measures that should be implemented in order to avoid quantitative measures that member states use to derogate and exceptions that should be supported through harmonised legislation.
Literature review
Article 29 EC (article 34 of the EC Treaty) asserts that quantitative restrictions on exports, and all measures having equivalent effect are prohibited between the member states thus implying that the national measures will have similar effect as quantitative restrictions when they restrict the pattern of export or when they discriminate in favour of national products or domestic market[6]. The technical obstacles that hinder free movement of goods are still widespread such as the national legislations on weight, composition, designation, labelling and packaging. The mutual recognition principle has enabled different national rules to exist in the internal market, but the mutual recognition principle has exceptions since the products that are lawfully produced and marketed in a member state will enjoy the free movement of goods[7].
ECJ’s decisions on free movement of goods are examples of policy changes that have been enacted by courts in order to eliminate the conflicts of certain policy priorities that conflict with the existing legal order. The case decisions aim at eliminating national rules that hinder European integration through replacing the national laws with constructed EU level case laws. For instance, ECJ’s decision in the case of Dassoville ECJ 8/74 outlined that measures that are capable of either directly or indirectly hindering EU common market have equivalent impact to quantitative restrictions. The expansive language and lengthy rules of inspection of imports or labelling standards are considered discriminatory[8].
The ECJ in the case of Dassoville outlined that all trading rules by member states that have the potential of hindering either directly or indirectly, actually or potentially, intra-community trade are to be considered having a similar effect with quantitative restrictions. Some of the elements of Dassoville case are the trading rules, enactment by member states, and capacity to hinder either directly or indirectly, actually or potentially intra-community trade. In this case, the trading rules refers to the national rules or national measures that are enacted by the member states such as ‘Buy Irish case’. The distinctly or indistinctly applicable measures discriminate and have a burden on the imported products as outlined in Rau case that entailed Belgian law requirement to market margarine in cube-shaped packaging thus creating a quantitative restriction[9]. The indistinctly applicable measures are contained in Cassis de Dijon case that expanded the justifications for breaching article 28 EC. In Cassis de Dijon case, the defendant argued that German prevented the importation of liquor on the basis of insufficient alcoholic strength despite the product being marketed in other member states. The ECJ ruled that measures of having an effect equivalent to quantitative restrictions contained in article 30 of the Treaty is to be understood to mean that the fixing of minimum alcohol content for liquor for human consumption by legislation of a member state falls within prohibition laid down in the provision. According to legal experts, Cassis de Dijon case has demonstrated ECJ willingness to extend article 28 EC to include the indistinctly applicable measures[10].
ECJ has laid out decisions regarding advertising restrictions in the case of keck and Mithouard, where it asserted that national measures that prohibit advertisements were restrictive in nature. In the case of Oostthoek (case 286/81), ECJ outlined that bans on free gifts for promotional purposes through legislation that prohibits the advertisement does not directly affect the imports such as restrict the volume of imports[11]. After the case of Keck and Mithoudard, ECJ has undertaken a different approach regarding the advertising restrictions, but in some aspects it has followed the same intrinsic importance of advertising to the free movement of goods. The selling arrangements are subject to discrimination test and some case laws have qualified the Keck formula and confirmed that article 28 is still applicable when the rule affects the nature of the product or when the rule has a different impact for the domestic traders and the importers[12].
The approach of ECJ on advertising is based on the fact that certain methods of sales promotion constitute selling arrangements, the concept of whether the advertising restriction is the outright prohibition of movement of goods and finally whether the national restriction affects the gods from other member states differently from its effect on the domestic goods[13].
ECJ has considered the impact of imposing national language and labelling aspects such as warranties, technical instruction and messages will constitute consumer protection. The obligation to use a national language in stages prior to sell to consumers is not justifiable on consumer protection basis and thus consumers cannot be deemed to easily understand the language of the other member states. In the case of Geffroy (case c-366/98) the court held that EU treaty precludes national rule that requires use of specific language without allowing a possibility of using another language that is easily understood by the purchasers[14].
The ECJ has dealt with restrictions relating to distance selling through the internet and mail order. The advancement in communication technologies has increased the volumes of internal market trade. The case of Deutscher Apothekerverband when German law prohibited sale of medical products through mail order. The court outlined that an outright ban on sale through internet could affect pharmacies outside German, but it agreed that public need to check the authenticity of doctors. However, the court pointed out prohibitions may be justified based on the social security system or the integrity of the national health system, but mail order or internet selling could not form a basis of prohibition[15].
Derogation from free movement of goods
ECJ has issued various decisions that justify certain prohibitions to free movement of goods. Although Article 30 (article 36 TFEU) lays dons the conditions for prohibition, ECJ has provided case decisions that will prohibit member states from misusing those conditions to impose restrictions[16]. The first protectionist measure is the public morality, policy and security where the member states can ban a product based on morality, public policy and security. The protection of minors in the marketing of video content and ECJ has justified member states restriction on importation of gold-collectors’ coins on the basis of public policy. The restriction of importation or exportation of viable oil refinery oils in order to maintain adequate supply during crisis can be justified on public security or restriction of goods that may significantly affect the foreign relations of the country[17].
The protection of health and life of humans, animals and plants (precautionary principle) is a popular justification that has been decided by the ECJ. The ECJ outlined that measures undertaken in this restriction must be proportionate and supported by relevant scientific evidence as in the case of National Farmers’ Union and Others case. The court has ruled that the measures must be necessary and aimed at protecting the life and health of humans and animals that are at significant risk of harm. The national treasuries possessing artistic, historic and archaeological value are also protected and include the archives, the items listed in national museums, books, means of transport and pictures, pains, and sculptures. Regulation (EC) No 116/2009 imposes uniform controls on exports of cultural goods[18].
The protection of industrial and commercial property such as patents, trademarks and copyrights is another protection outlined by Article 34-36 TFEU. The national laws on the acquisition and transfer of property rights are excepted from free movement of goods, but the owners of the rights are prohibited from opposing the importation of the products when first marketed. The principle of exhaustion of rights will not preclude the holders of lending rights from recovering royalties, but this aspect have been harmonised by Directive 89/104/EC[19].
The mandatory requirements outlined in Cassis de Dijon judgment pointed out that ECJ could further extend the list of protected interests as evidenced by the courts decision to extend the protection to environment. ECJ observed that protection of environment was an essential objective of EU and thus member states could impose restrictions on movement of goods in order to protect the environment[20]. some prohibitions that have been implemented include the restrictions on importation of waste, ban on certain chemical substances and requirements of using renewable energy sources. ECJ has considered restrictions on the grounds of cultural aims such as such as French cinematographic works case. ECJ ruled that maintenance of press diversity in the case of Austrian ban on publication of offering chances to the readers to participate in games for prizes was a justifiable restriction in order to promote freedom of expression and adhere with Article 10 of the European Convention on Human Rights and Fundamental Freedoms. Furthermore, ECJ has articulated that financial balance of the social security system can be a obstacle to free movement of goods as evidenced in the case C-120/95 Decker[21].
Methodology
The research study will use qualitative research methodology that will entail using secondary data from textbooks, journals and case laws from ECJ judgments in order to understand ECJ decisions in protecting free movement of goods. The research will identify various EU Treaties and case laws that aim at enhancing free movement of goods and prohibiting quantitative restrictions that have the effect of limiting free movement of goods across the common market. Accordingly, ECJ judgments will be essential in understanding the measures that EU has undertaken in providing for restrictions on environmental protection grounds and subsequent developments such as freedom of expression. The case laws will identify the numerous principles used in ECJ decisions such as rule of reason, proportionality and necessity rule in offering exceptions to free movement of goods. The research will also rely on expert opinions and views of various scholars and international policy makers in understanding whether ECJ has made the right decisions in furthering the fundamental freedoms of free movement of goods within EU[22].
Conclusion
Article 28 and 29 of EC Treaty prohibits the quantitative restrictions on free movement of imports and exports and any other measures have an equivalent effect between the EU member states. However, Article 30 grants the member states the right to prohibit movement of goods on the basis of public morality, public security, the protection of health and life of human beings and animals, public policy, protection of cultural activities, protection of national treasuries possessing historical and archaeological value, consumer protection and fiscal supervision effectiveness. The member states exercising restrictions must demonstrate that the measures are proportional and necessary and such prohibitions should not constitute arbitrary discrimination between the member states. The member states should not impose custom duties or other charges that have similar effects to custom duties.
Bibliography:
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Gormley, L. ‘Actually or potentially, directly or indirectly? Obstacles to the free movement of goods’ (1989) 9 YEL 197.
Horsley, T. ‘Unearthing buried treasure: art 34 TFEU and the exclusionary rules’ (2012) EL Rev 734.
Jacob, M.A. Precedents and case-based reasoning in the European Court of Justice: Unfinished business. London: Cambridge University Press. 2014.
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Shuibhne, N.N. 2013. The coherence of EU free movement law: constitutional responsibility and the court of justice. Oxford: Oxford University Press. 2013.
Snell, J. ‘The notion of market access: a concept or a slogan?’ (2010) 47 CML Rev 437.
Stefan, E. (2007). ‘The ECJ’s recent case law on the free movement of goods: movement in all sorts of directions’, Yearbook of European law, 26 (1): 115-156.
Steiner, J. ‘Drawing the line: uses and abuses of Article 30 EEC’ (1992) 29 CML Rev 749.
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[1] J, Richardson. European Union: power and policy-making. London: Psychology Press. 2006. P 19.
[2] J, Tillotson. European Union law: text, cases and materials. London: Cavendish Publishing. 2002. P 67.
[3] E, Stefan (2007). ‘The ECJ’s recent case law on the free movement of goods: movement in all sorts of directions’, Yearbook of European law, 26 (1): 115-156.
[4] A, Sweet. The Judicial construction of Europe. Oxford: Oxford University Press. 2004. P 88.
[5] K, Cseres. Competition law and consumer protection. Hague: Kluwer Law International. 2005. P 19.
[6] J, Steiner. ‘Drawing the line: uses and abuses of Article 30 EEC’ (1992) 29 CML Rev 749.
[7] M.A. Jacob. Precedents and case-based reasoning in the European Court of Justice: Unfinished business. London: Cambridge University Press. 2014. P 123.
[8] N, Shuibhne, 2013. The coherence of EU free movement law: constitutional responsibility and the court of justice. Oxford: Oxford University Press. 2013. P 198.
[9] P, Oliver. Free movement of goods in the European Union. London: Hart. 2010. P 23.
[10] T, Horsley. ‘Unearthing buried treasure: art 34 TFEU and the exclusionary rules’ (2012) EL Rev 734.
[11] W.H, Roth, Casenote on Keck and Hunermund (1994) 31 CML Rev 845.
[12] G, Robinson. Optimize EU law. London: Routledge. 2014. P 234.
[13] L, Gormley. ‘Actually or potentially, directly or indirectly? Obstacles to the free movement of goods’ (1989) 9 YEL 197.
[14] J, Snell. ‘The notion of market access: a concept or a slogan?’ (2010) 47 CML Rev 437.
[15] C, Bernard. The substantive law of the EU: the four freedoms. Oxford: Oxford University Press. 2013. P 77.
[16] N.G, Foster,. Foster on EU law. Oxford: Oxford University Press. 2013. P 98.
[17] N.G, Foster,. Foster on EU law. Oxford: Oxford University Press. 2013. P 109.
[18] W, Nicoll & T, Salmon. Understanding the European Union. London: Pearson. 2001. P 73.
[19] T.P, Kennedy, European law. Oxford: Oxford University Press. 2008. P 214.
[20] S, Weatherill, Cases and materials on EU law. Oxford: Oxford University Press. 2014. P 129.
[21] P.P, Craig, & G,. Burca.The evolution of EU law. Oxford: Oxford University Press. 2011. P 104.
[22] W, Nicoll & T, Salmon. Understanding the European Union. London: Pearson. 2001. P 98.
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