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Legitimate grounds for exceptions

As we have seen, the Court of Justice has repeatedly held that since Article 36 TFEU contains an exception to the rule of the free movement of goods within the EU, it must be narrowly interpreted.[1] [2] [3] The Court has also in some cases clearly indicated that there is a difference between measures aimed at the protection of human life and health and those aimed at the protection of the environment.65 But in Bluhme the Court interestingly held that national measures aimed at the preservation of ‘an indigenous animal population with distinct characteristics contribute to the maintenance of biodiversity by ensuring the survival of the population concerned’ and are thereby aimed at protecting the life of those animals and are capable of being justified under Article 36 TFEU.66 As to the object of the protective measures, the Court of Justice even found that

from the point of view of such conservation of biodiversity, it is immaterial whether the object of protection is a separate subspecies, a distinct strain within any given species or merely a local colony, so long as the populations in question have characteristics distinguishing them from others and are therefore judged worthy of protection either to shelter them from a risk of extinction that is more or less imminent, or, even in the absence of such risk, on account of a scientific or other interest in preserving the pure population at the location concerned.67

It is thus clear that Article 36 covers not only measures for the protection of specific individuals, for example against contagious diseases, or even those protecting a species against extinction, but also measures aimed at protecting biological diversity and its components in a broad sense. More generally, this indicates that there is room for a broader interpretation of the ambit of Article 36.

The Court has also in some cases assessed protection of human health and wider environmental considerations together without making a distinction between the two grounds. In Mickelsson and Roos, a case concerning a prohibition on the use of personal watercraft on waters other than general navigable waterways, the Court found that the protection of the environment, on the one hand, and the protection of health and life of humans, animals, and plants, on the other hand, were closely related objectives, which should be examined together.[4] [5]

In addition to Article 36 and protection of the environment more generally, mention should be made of one further ground for legitimately restricting the free movement of goods. EU law and its application may not be inconsistent with human rights as defined, inter alia, in international treaties to which the Member States are parties.69 This applies also to the Member States, and the Court of Justice has therefore concluded that the protection of human rights is a legitimate interest which, in principle, justifies a restriction of a fundamental freedom such as the free movement of goods.[6] [7] [8]

An obligation to take protective measures can follow, inter alia, from the right to life and the right to privacy/1 Perhaps more interesting in this context is that other rights, such as freedom of expression and freedom of assembly, can also have implications for the lawfulness of environment-related national measures. A pertinent example is when private actors want to draw attention to what they consider to be environmentally harmful activities through acts which constitute an obstacle to the free movement of goods. In Schmidberger the Court of Justice found that a decision by Austrian authorities not to prohibit a demonstration by environmental protesters, which resulted in the complete closure of the Brenner motorway for almost thirty hours, could be justified by reference to the freedom of expression and the freedom of assembly/2

  • [1] See, eg, Case C-333/08 Commission v France (n 45), para 87.
  • [2] Case C-2/90 Commission v Belgium ECLI:EU:C:1992:310, para 30.
  • [3] Case C-67/97 Bluhme (n 13), para 33 . 67 Ibid, para 34.
  • [4] Case C-142/05 Mickelsson and Roos CLI:EU:C:2009:336, para 33. See also the discussion on Case C-573/12 Alands Vindkraf ECLI:EU:C:2014:2037 in section 3.3.4.
  • [5] Case C-299/95 Kremzow ECLI:EU:C:1997:254, para 14.
  • [6] Case C-112/00 Schmidberger (n 15), para 74.
  • [7] See, eg, the judgments of the European Court of Human Rights in Guerra and Others v Italy,App No 14967/89, 19 February 1998; Lopez Ostra v Spain, App no 16798/90, 9 December 1994; andFadeyeva v Russian Federation, App No 55723/00, 9 June 2005.
  • [8] 72 Case C-112/00 Schmidberger (n 15).
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