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Grounds of derogation under Article 36 TFEU and Mandatory Requirements
The Law of the European Union (CL6031)
Cardiff University
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Grounds of derogation under Article 36 TFEU
Article 36 contains an exhaustive list of derogations, which allow national measures to take precedence over the free movement of goods where they serve important interests recognized by the Union as valuable. This means that in some instances the Member State’s restriction will be found not to breach Article 34 TFEU.
Article 36 sets out the grounds on which a Member State can argue that a measure is justified as follows:
‘The provisions of Article 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security, then protection of health and life of humans, animals or plants, the protection of national treasures possessing artistic, historic archaeological value, or the protection of industrial and commercial property.
Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.’
Public Morality
Each Member State is allowed to determine for itself what constitutes public morality. This was set out in the relatively early case of Henn and Darby , where the court indicated that ‘in principle, it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirement of public morality in its territory.’ This case involved the importation into the United Kingdom of obscene films and magazines from Netherlands, the United Kingdom sought to justify a ban on such imports on grounds of public morality. A prima facie breach of Article 34 TFEU , the ban on pornography, was justified under Article 36 TFEU.
However, United Kingdom was not able to rely on public morality defence in the Conegate case since the same sort of dolls, which they had seized could be manufactured in United Kingdom as well.
Public Policy
This derogation has been very narrowly construed and the Court of Justice has been reluctant to expand the parameters of what might appear to be a wide justification. This justification has been successfully invoked just once in R v Thompson , where it was held that ‘ a ban on exporting of such coins with a view to preventing their being melted down or destroyed in another Member State is justified on grounds of public policy within the meaning of Article 36 TFEU because it stems from the need to protect the right to mint coinage........ 1 ’
1 A mint is a primary producer of a country’s coin currency, and it has the consent of the government to manufacture coins to be used as legal tender.
This derogation has been invoked in a number of cases involving protests which have interfered with the free movement of goods, but the Court of Justice has been unsympathetic towards these arguments: Centre Leclerc
Subsequently in Spanish Strawberries and Schmidberger the Court has wrestled with the interplay between the public policy exception and respect for fundamental human rights. In Schmidberger the Court accepted the right to protest as being able to disrupt goods legitimately and obliged the Member States to strike a balance between the free movement of goods and the right to protest.
Public Security
The Court of Justice has been traditionally sympathetic towards arguments based on public security even with the presence of economic element in the national legislation at issue. Campus Oil , illustrated that where a country is dependent almost exclusively on imports for its supplies of petroleum the public security exception can be invoked. In this case petroleum companies were required to buy a certain proportion of their oil from a state owned installation at a price fixed by the Irish Government. The public security exception was accepted. In Commission v Greece the court reaffirmed the decision it had made in Campus Oil , stating that ‘maintenance on national territory of products allowing a continuity of supplies to be guaranteed constitutes a public security objective.’
Protection of health and life of humans, animals or plants
This derogation to free movement of goods is most frequently invoked. In Rosengren , the Court made it clear that this justification ‘ranks foremost’ among the list of derogation in Article 36 TFEU and it is for the Member State to decide upon the degree of protection they wished to ensure for their citizens under this heading. This discretion is nevertheless exceeded where a measure goes beyond what is necessary to attain the objective the Member State claims to pursue, and therefore breaches the proportionality principle.
This justification is successful on a number of occasions. In Sandoz , the Dutch authorities refused to grant authorization for the importation of muesli bars, which contained added vitamins from Germany, where they were lawfully sold. Given, however, the uncertainty pertaining to scientific research into the effects of chemicals such as added vitamins, the court said that the rules were justified.
Similarly, in Schwarz , the Court of Justice accepted a requirement that chewing gum sold in vending machines should be wrapped since in the past non packaged goods had been impaired by moisture or insects within then vending machine containers.
There are two circumstances which will make the justification of public health untenable, firstly lack of scientific research suggesting that there is a real health risk, and secondly a failure to comply with the principle of proportionality. In Commission v Italy , the Court of Justice stated that the Italian Government had failed to produce evidence to explain any risk to public health. In Greenham v Abel , it was pointed out that the Court of Justice would be more than willing to allow the justification if the
consumer protection justified such a prohibition on imported beer. It is clear that the presumed expectation of an average consumer are one who is reasonably well informed, observant and circumspect.
Arguments normally fail in this area because the legislation is not in line with the principle of proportionality. In cases such as Clinique laboratories , Mars and Estee Lauder each time it was raised it failed.
Nevertheless, this justification has been invoked successfully on a number of occasions: Robertson
Improvement of working conditions
In Oebel, the court stated that the restriction entailed in the opening time rules was justified, indicating that ‘the prohibition on working before 4 a constituted a legitimate element of economic and social policy.....’
Protection of culture
This was added to the list by Cinetheque , where the Court of Justice held that a national system in order to encourage the creation of cinematographic works, irrespective of their origin, gives priority, for a limited period, to the distribution of such works through cinema, is justified. Thus, the protection of culture can be a legitimate interest limiting the free movement of goods under the Cassis de Dijon rule of reason.
Diversity of the press
In Familiapress , the Court accepted that there could be a justification for maintaining press diversity, and thus the Austrian legislation prohibiting publishers from including prize crossword puzzles in their papers was justified.
The effectiveness of fiscal supervision
This was established in Cassis de Dijon and Carciatti.
Maintenance of social security system
Decker added this justification to the list. In this case the claimant could not reclaim the cost of spectacles he had purchased in Belgium from the Luxemburg social security authorities, since there was a risk of seriously undermining the financial balance of the social security system.
Protection of fundamental rights
In Schmidberger , the Austrian authorities permitted an environmental group to stage a demonstration designed to raise awareness of traffic pollution. Due to this demonstration the motorway linking Germany and Italy was blocked for 30 hours. Schmidberger claimed that this constituted a breach of Article 34 TFEU. The Court of
Justice agreed that this did breach Article 34 TFEU, but was justified by the overriding consideration linked to respect fundamental rights of the individual protestors.
As with the derogations in Article 36 TFEU , even the justifications under the mandatory requirements must be used proportionately: Commission v France
Grounds of derogation under Article 36 TFEU and Mandatory Requirements
Module: The Law of the European Union (CL6031)
University: Cardiff University
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