• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
  6. 6
  7. 7
  8. 8
  9. 9
  10. 10
  11. 11
  12. 12
  13. 13
  14. 14
  15. 15
  16. 16
  17. 17
  18. 18

How Member States can derogate from the trading conditions governed by European Community (EC) rules

Extracts from this document...


European Union Law - LLB Law and Institutions of the European Union LL255 "[D]erogation ... a temporary waiver from a regulation or ... directive."1 Introduction This essay will look at how Member States can derogate from the trading conditions governed by European Community (EC) rules, starting with a brief account of those rules. The derogations available under Treaty will then be detailed, followed by derogations developed by Community law. The issue of proportionality is a key element for most, if not all, derogations. I will look at how this issue can affect the judgments arrived at by the European Court of Justice (ECJ). I will conclude by looking at issues that seem to require further attention by all parties involved in issues of derogating from EC trading rules, for instance clarity of terminology. ************************************************** European Community Treaty * Prohibitions A fundamental aspect of the European Union concerns trading conditions between Member States, for which the EC Treaty2 expects the structure to be that of a customs union.3 Article 23(1) (ex Art. 9(1)) states this clearly and lists the actions required to achieve this. Articles 28 & 29 (ex Art. 30 & 34)4 prohibit Member States from imposing quantitative restrictions on imports and exports respectively. By Article 90 (ex Art. 95) the Treaty halts internal taxation of imports which would produce an equivalent effect to that of customs duties.5 * Derogations The Treaty, however, provides Member States with the ability to derogate from the rules governing trade. Most significantly Member States can restrict imports and exports under Article 30 (ex Art. 36), on specific grounds, namely; * public morality;6 * public policy;7 * protection of industrial and commercial property, and for;8 * public security (which encompasses) the;9 * protection of health and life of humans, animals and plants, or the;10 * protection of national treasures possessing artistic, historic, archaeological value.11 Given the importance of the 'fundamental principle'12 for the free movement of goods, it is unsurprising to find that invoking Article 30 will be ...read more.


Measures that discriminate directly can only be justified under Article 30 whilst, where necessary, indistinctly applicable and non-discrimination measures are able to seek justification on the expanding grounds of 'mandatory requirements'.67 * Necessity The causal link between the Member State's measure and their objective aims are defined in terms of necessity, "whilst the least trade restrictive character of the measure is called proportionality"68 Notaro points out that, in fact, the 'concept of necessity'69 has the causal link and least trade-restrictive elements built in because, 'a measure for which a less restrictive alternative exists is not, strictly speaking, needed'.70 The Crayfish case highlights the sometimes-difficult process of isolating the proportionality of national regulation out from that of their health or environmental aims. Moving toward a definition and use of a necessity test, as opposed to one of proportionality, could bring benefits to judicial rulings. Reducing the need for the courts to analyse and balance the proportionality of the objective aims for national measures against that of other measures could positively affect, in particular, the area of environmental protection, and consumer protection. In the Danish Bottles71 case the court declared their preference for the lower level of environmental protection coupled with a less restrictive effect on trade; rather than the more restrictive effect on trade, but offering greater environmental protection. Would this decision have been different had a test of necessity been employed instead? * Food safety According to the courts economic grounds can never serve as justification for barriers to trade. Indeed derogations are considered to be non-economical in nature.72 It is expected that derogations will assist in balancing 'the needs of a single market against that of the public security interests of the Member States'.73 It should be noted then that a Member State cannot nullify a breach by another Member State by adopting unilaterally protective measures.74 An understandably common justification for derogation in relation to food products, is that of consumer protection. ...read more.


59 The court stated that it is "arbitrary discrimination if domestic products are not subject to an equivalent examination" 60 For example, excessive testing of Italian wine in EC Commission v France (Case 42/82) [1983] ECR 1013. 61 See for instance - Torafen BC v B&Q Plc (Case 145/88) [1989] ECR 3851 62 Konsumentombudsmannen (KO) v Gourmet International Products AB (Case 405/98) [2001] All ER (EC) 308 (ECJ) 63 J. Jans, European Environmental Law, Kulwer [1996] at p.218. 64 Notaro, Nicola (2000) The New Generation Case Law on Trade and Environment, at p.9 regarding - Chemische Afvalstoffen Dusseldorp BV v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (Case C-203/96) [1998] ECR I-4075 65 Aher-Waggon GmbH v Bundesrepublik Deutschland (Case C-380/96) [1998] ECR I-4473. 66 At paragraph 21 of the judgement 67 Hilson, Christopher (1999) Discrimination in Community Free Movement Law, E.L. Rev. 24(5), 445-462 68 Notaro, Nicola (2000) The New Generation Case Law on Trade and Environment, at p.13. 69 Ibid. 70 Ibid. 71 Commission v Denmark (Case 302/86) [1988] ECR 4607. 72 Commission v Ireland (Case 288/83 [1985] ECR 1761, at paragraph 28 of the judgment. 73 Eikenberg, Katharina (2000) 'Article 296 (Ex 223) E.C. and External Trade in Strategic Goods', at p.1. 74 Joined cases: Commission v Luxembourg and Belgium (Cases 90/63 & 91/63) ECR 625 75 Hans-Christoph Von Heydebrand u.d. Lasa (1991) Free Movement of Foodstuffs, Consumer Protection and Food Standards in the European Community: Has the Court of Justice Got It Wrong, E.L. Rev. 16(5), p.391. 76 Goods that have been lawfully marketed in one Member State should, in principle, be admitted to the market of any other Member State; although they may be different in some detail, but which essentially responds to the same need. 77 MacMaol´┐Żn, Caoimhln (2001) Free Movement of Foodstuffs, Quality Requirements and Consumer Protection: Has the Court of Justice Got It Wrong, E.L. Rev. 26(5), p414. 78 The single mother, people with learning disabilities and/or mental health concerns may find labelling information insufficient to protect their needs. 79 The removal of discrimination by Member States. ?? ?? ?? ?? 13 2 Student ID: 90158091 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level European Union section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level European Union essays

  1. The Importance of the Cyprus Issue in terms of the Accomplishment of the ESDP

    There are ofcourse several reasons for the EU's increased interest on the issue. First, in order to become an international actor, the EU is required to have a strong capability in the common foreign security and defence policy. Therefore, Cyprus was a good avenue to repair its tarnished image and

  2. The question of whether Britain should gravitate toward adopting the euro is indeed an ...

    It should matter greatly to the people of Britain that theirs is indeed an independent nation. Joining the euro will not put the final nail in their coffin, but it will definitely point the way to their end. The vision of a united Europe is indeed awesome in its pretext,

  1. What does citizenship mean in the European context?

    that citizenship reinforces and renders more tangible the individual's sentiment of belonging to the Union; and b. that citizenship confers on the individual citizen rights which tie him to the Union.[5] Something was going amiss in the public relations of the Union.

  2. EU actorness in relation to Environment policy and Development policy: An evaluation.

    The European Development Fund (EDF) is the main instrument for Community aid for development cooperation in the ACP countries and the Overseas Countries and Territories (OCT). The EDF consists of several instruments, including grants, risk capital and loans to the private sector.8 The EDF is derived from Member State funding rather than from the community budget.

  1. The aim of this essay is to present the reason of British government changing ...

    In 1959, Britain and seven other countries created the European Free Trade Association (EFTA). EFTA has been established as a counterweigh to the EEC. The EFTA treaty provided only for the elimination of tariffs on industrial products among member nations.

  2. Economic and political integration between the member states of the European Union means that ...

    One consequence is greater mobility for EU citizens. Since 1987, for example, more than a million young Europeans have taken study courses abroad, with support from the EU. Institutions The Union is managed by these institutions: a democratically elected Parliament, a Council representing the Member States and composed of government

  1. Cultural Similarities and Differences between EU Member States

    As a result of the cold weather experienced in places like Poland different clothes markets may be targeted by Tesco as a result of the Climate; "Poland has a moderate climate. As a result, the weather tends to be capricious and the seasons may look quite different in consecutive years.

  2. 'The European Union's common foreign and security policy has been more rhetoric than reality'

    European Coal and Steel Community (ECSC). Whilst economic and trade facets of the union have experienced success, the establishment of a common foreign and security has proved problematic, in becoming a reality. The historical setting of the ECSC pact was one of the biggest problems posed, with relation to achieving any kind of common security system.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work