Legitimising Trade Restrictive Measures

The prohibition on quantitative import and export restrictions and measures having equivalent effects is subject to certain exceptions. These exceptions, which should not be confused with the delimitations of the prohibitions discussed previously, come into play once a national measure has been found to be prima facie inconsistent with Article 34 or 35 TFEU. Considering the broad interpretation of the prohibition, particularly with respect to restrictions on imports, virtually every national measure which impedes trade between Member States would otherwise be prevented. That would have severe repercussions on the ability of the Member States to protect important public interests. For this reason there were from the outset a number of legitimate grounds for exemptions, which are now found in Article 36 TFEU. It states that: ^[1]

The provisions of Articles 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; the protection ofhealth and life ofhumans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.

The Article continues by establishing that ‘[s]uch prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States’. ‘Arbitrary discrimination’ and ‘disguised restriction on trade’ are hence prohibited even if the measures are based on legitimate grounds. But equally significant is that national measures should be allowed to make a distinction based on nationality as long as the discrimination is not ‘arbitrary’ or a disguised restriction on trade, that is, when they are necessary for the attainment of the legitimate objective. To exemplify: restricting the importation of live cattle from one Member State while continuing to allow it from other Member States as well as allowing the continued sale of domestically reared cattle does not amount to unlawful discrimination if in the Member State on whose cattle the prohibition has been imposed there is an outbreak of an epizootic disease the spread of which the import prohibition aims to prevent.^{[2] [3] [4] [5] [6] [7]}

For a national measure to be susceptible to justification under Article 36 there should be no less trade-r estrictive measure available to the Member State that achieves the same objective.42 Put differently, the national measures should be necessary to achieve the legitimate objective at issue. It falls on the Member State that takes a trade-restrictive measure to show that the measure is necessary in order to attain one or more objectives mentioned in Article 36.43

Of greatest significance to the present discussion, and also the derogation most frequently invoked by the Member States, is the right to prohibit or restrict imports or exports in order to protect the health and life of humans, animals, or plants.44 This right evidently covers measures aimed at preventing the spread of human, animal, and plant diseases, as well as product standards when the regulated products may pose a threat to human health. But there is no reference in Article 36 to the protection of the environment in a broader sense. And since this Article constitutes an exception from the general prohibition of Article 34, the Court of Justice has held that it must be narrowly interpreted.45 As a result, it has traditionally only been environmental legislation that primarily concerns the health and life of humans, animals, or plants that has been deemed to fall under this exception.46 There is accordingly a wide array of national measures aimed at the protection of the environment in one sense or the other that reasonably fall outside the purview of Article 36 and which would thereby be prohibited without any possibility for an exception. This applies not only in the field of environmental protection but also with respect to several other policy objectives that became increasingly important after the drafting of the Treaty of Rome in the 1950s. During the 1960s and 1970s it became apparent that there was a pressing need for potentially trade-restrictive national measures in areas not covered by secondary EU law in order to protect values or further objectives not mentioned in Article 36 TFEU.

A first recognition of this need by the Court of Justice came in the Dassonville case in 1974.^[8] In this case the Court found that the objective of consumer protection can justify national measures that hamper trade between Member States. This conclusion also had profound implications beyond the field of consumer protection since it established the existence of legitimate grounds for exceptions beyond those set out in Article 36. The Court of Justice required that the measures be ‘reasonable’^^{[9] [10]} This has subsequently been specified as a requirement for proportionality.

However, the decisive step towards expanding the room for trade restrictive national measures outside the ambit of Article 36 was taken by the Court of Justice in 1978 in a case usually called Cassis de Dijon4 In that case the Court found that:

Obstacles to movement within the community resulting from disparities between the national laws relating to marketing of the products in question must be accepted in so far as those provisions may be recognised as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.^[11]

Hereby the Court had established ‘mandatory requirements’ as the basis for justifying trade-impeding national measures outside of Article 36. While providing a number of such mandatory requirements, the Court also indicated that the list was not exhaustive. In the specific case, however, the Court did not accept the national measures at issue (ie, the mandatory fixing of a minimum alcohol content for certain alcoholic beverages), since they were not deemed to ‘serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community’.^[12] A mandatory requirement must hence relate to a general interest that may be given precedence over the free movement of goods. In its subsequent case law the Court of Justice has recognised a number of such mandatory requirements which are often collectively referred to as ‘overriding requirements relating to the public interest’.52 The appropriateness of having a court, rather than a more democratically legitimate political body, determining what is an interest able to take precedence over the free movement of goods is nonetheless clearly disputable.

The case gave rise to what is now generally known as the Cassis de Dijon principle. According to this principle, a national measure is allowed to impede trade between Member States in cases where there is no applicable secondary EU legislation provided that the measure in question is proportionate to the aim in view and is also the least trade-restrictive measure able to achieve that aim. The measure should also apply to domestic and imported products without distinction.5³ However, as discussed further in section 3.3.4, this non-discrimination requirement has been de facto abandoned by the Court in its subsequent case law.

• [1] 6 Case 15/79 GroenveldECLI:EU:C:1979:253, para 7. 37 See eg Opinion of Advocate General Tresnjak in Case C-205/07 ECLI:EU:C:2008:427,paras 42-48. 38 Case C-205/07 Gysbrechts ECLI:EU:C:2008:730, para 43. When apparently dropping the ‘provide a particular advantage for national production’ criteria, the Court also seems to have opened upfor mandatory requirements to be used for justifying an exception to Art 35: ibid, para 47. Mandatoryrequirements are discussed later in this chapter. 39 See eg Case C-209/98 Entrepren0rforeningensAffalds/Milj0sektion (FFAD) ECLI:EU:C:2000:279(‘Sydhavnens Sten & Grus’). 40 Case C-203/96 Chemische Afvalstoffen Dusseldorp and Others ECLI:EU:C:1998:316, para 44.
• [2] A similar situation was addressed in Case 4/75 Rewe-Zentralfinanz ECLI:EU:C:1975:98.
• [3] 42 Case 104/75 de Peijper ECLI:EU:C:1976:67, para 17.
• [4] Case 227/82 van Bennekom ECLI:EU:C:1983:354, para 40.
• [5] Barnard The Substantive Law of the EU (n 25) 163.
• [6] Case 29/72 Marimex ECLI:EU:C:1972:126, para 4. This has subsequently been reaffirmed onmany occasions, eg in Case C-333/08 Commission v France ECLI:EU:C:2010:44, para 87.
• [7] 46 The Court of Justice has, however, taken a rather generous view on what may be regarded asmeasures aimed at protecting the health and life of animals, eg in Case C-67/97 Bluhme (n 13), whichis further discussed presently.
• [8] Case 8/74 Dassonville (n 7).
• [9] Ibid. In this case the Court of Justice found that in the absence of a community system guaranteeingfor consumers the authenticity of a product’s designation of origin, Member States may take measures toprevent unfair practices in this context provided that these measures are reasonable and that the means ofproof required do not act as a hindrance to trade between Member States. Ibid, grounds, para 6.
• [10] Case 120/78 Rewe-Zentral (n 9). 50 Ibid, para 8. 51 Ibid, para 14.
• [11] 52 Case C-112/00 Schmidberger (n 15), para 78. For a typology of mandatory requirements recog
• [12] nised in subsequent case law see Barnard The Substantive Law of the EU(n 25) 172—3.