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Article 36 TFEU derogations

This document provides: Article 36 TFEU derogations and Public moralit...
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EU Law (LA5002)

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Academic year: 2021/2022
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University of Chester

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Article 36 TFEU derogations

Article 36 TFEU provides exceptions to the general prohibition of Article 34 TFEU.

Article 36 TFEU provides the member states with an exhaustive list—in other words, it cannot be added to. Article 36 TFEU allows the member states to restrict the free movement of goods for certain specific reasons only. The member states must prove that the national measure is both necessary and proportionate and not fall foul of the second sentence of Article 36.

Case 113/80 Commission v Ireland (Metal Objects)

It was held that because the derogations were exceptions to a fundamental principle, namely the free movement of goods, they were to be construed narrowly and could not, for example, be used for economic reasons and could not be added to.

Public morality

The standard of morality varies from member state to member state; hence the CJEU has allowed for a margin of discretion on the part of the member states to cater for this variation within this exception.

Case 121/85 Conegate v HM Customs and Excise

The Court held that a member state might not rely on the ground of public morality to prohibit the importation of goods from other member states when its legislation contained no prohibition on the manufacture or marketing of such goods in its own territory. The prohibition was therefore a disguised restriction on trade and a means of arbitrary discrimination, and as such contrary to the second sentence of Article 30 EC (now 36 TFEU).

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Article 36 TFEU derogations

Module: EU Law (LA5002)

296 Documents
Students shared 296 documents in this course

University: University of Chester

Was this document helpful?
Article 36 TFEU derogations
Article 36 TFEU provides exceptions to the general prohibition of Article 34 TFEU.
Article 36 TFEU provides the member states with an exhaustive list—in other words, it cannot
be added to. Article 36 TFEU allows the member states to restrict the free movement of goods
for certain specific reasons only. The member states must prove that the national measure is
both necessary and proportionate and not fall foul of the second sentence of Article 36.
Case 113/80 Commission v Ireland (Metal Objects)
It was held that because the derogations were exceptions to a fundamental principle, namely
the free movement of goods, they were to be construed narrowly and could not, for example,
be used for economic reasons and could not be added to.
Public morality
The standard of morality varies from member state to member state; hence the CJEU has
allowed for a margin of discretion on the part of the member states to cater for this variation
within this exception.

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