3.3 Goods and Products covered by Articles 9 to 37
Article 9 provides that the provisions of the treaty will apply to products, which originate in a Member State and to products which have entered the system from a third country outside the EU. Regarding products from outside the EU the idea is that once the custom or levy has been paid to the first EU State it enters it can then move freely without being subject to further restrictions. Products are determined to have originated from wherever the last substantial process or operation was performed.
The treaty does not distinguish between “goods and products” the case of EC Commission V Italy somewhat clarified this issue. This case was regarding the transferral of certain national treasures. On conclusion the Court determined that goods included products that can be valued in money and which are capable as such, of forming the subject of commercial transactions, including Art.
3.4 Customs Duties and Charges having equivalent effect: Articles 9 to 17
Article 9 details how the community shall be based upon a customs union, which shall cover, all trade in goods and which shall involve “the prohibitions between Member States of customs duties on imports and exports and of all charges having equivalent effect. Also the adoption of a community customs tariff in their relations with third countries”. Articles 12 to 17 then go on to deal with these matters in a more specific way. Article 12 is the provision that prevents Members States from introducing new customs duties and charges having equivalent effect and from increasing those, which they already apply in their trade with each other. This Article was effective in the Van Gend en Loos case 1963 where the Dutch government placed certain goods into a higher customs duty bracket so as to increase revenue.
“It is difficult to define what a charge having an equivalent effect is. Loosely speaking any payment demanded from an importer or exporter can amount to a charge having an equivalent effect.”
B. McMahon, European Community Law in Ireland 1993
The consensus by the CCT as stated in the WJG Bauhuis v Netherlands State (1977) is that it is important to look at each case under the light of the objectives proposed by the Treaty i.e. to ensure the free movement of goods. This attitude prevents the irritation of cases involving charges for stamps and containers necessary for transportation and of small expense but which technically break the provisions of the Act.
There are fees required by Law and for public benefit. Such as charges for the inspection of meat before it enters a State or administration charges. However these charges must not be of benefit to the government nor to the Importer/Exporter.
3.5 Quantitative Restrictions and Measure having Equivalent Effect: Articles 30 – 36
A Quantitative restriction is when a Member State discontinues the import of a good or the import of certain amounts of that good. A complete ban on British beef would be a quantitative restriction.
The European court described the exact meaning of a measure having an equivalent effect as
“trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade . . .”
For example in EU Commission v Ireland (1982) a government sponsored “Buy Irish” campaign was declared as being a measure having equivalent effect to a quantitative restriction, as it could obviously influence imports and was clearly discriminatory.
However other measures have been proved to be not directly applicable or discriminatory but contravene the intentions of policy nonetheless. In the Cassis de Dijon case it was held that even though the restriction applied to both home
and foreign produce there was no substantial reason for this law and was used mainly to safeguard home produce, it therefore opposed the policy.
Similarly to Customs duty restrictions, Article 31 prevents States from introducing any new restriction.
Other examples of measures which have an equivalent effect to a quantitative restriction are: Price controls, import licencing requirement, as well as inspection fees demanded on imports for veterinary and public health inspection of meat.
3.6 Public Morality, Public Policy and Public Security.
The principal exception to the prohibition of quantitative restrictions is contained in Article 36 which excludes Articles 30 to 34 on the grounds of public morality, public policy or public security, the protection of health and life of humans, animals or plants; the protection of national treasures and the protection of industrial and commercial property.
3.6.1 Public Morality
Member States have certain discretion in what they allow into their Country based on Public Morality. Some Member States have tried to take advantage of this Article namely the UK who tried to disallow the import of inflatable sex dolls on the grounds of public morality. However similar sex dolls manufactured in England were freely available, the argument was rebuked.
3.6.2 Public Policy
This is a vaguer term and is capable of being easily abused by Member States. The Court of Justice has been vigilant in this respect.
“The conclusion must be, then, that the concept of public policy relates purely to the fundamental interests of the State and that the interpretation of the concept is consistent with that adopted in relation to persons and services.”
L Gormely, Prohibiting Restrictions on Trade within the EEC 1984
3.6.3 Public Security
This applies not only on the grounds of dangers to public safety such as the import of weapons but also in respect to the protection of economies. An import or export may pose a serious threat on an economic situation. This was seen in an Irish case where companies importing petroleum were told to purchase a percentage of their oil from the Irish company Whitegate as it was the only Irish Oil Company. The Irish government was permitted to do this, as without Whitegate there may be a disruption in supplies.
3.7 The protection of Health and Life of Humans, Animals and Plants. Article 36
The Court of Justice has been very vigilant in making sure that this Article does not dissolve the principle of the free movement of goods treaty. It has done so by declaring that the exception must be used only to the minimum extent necessary to achieve the health and life objectives (i.e. the principle of proportionality must be observed). It will not allow a trade ban on goods based on Article 36 if it is merely a disguise for discrimination based on other idiosyncrasy. In other cases the Court has, even where a national measure is probably justified under Article 36, frequently struck down a measure as being disproportionate. To this extent in these cases the Court has been heard to say.
“Even if the measure can be considered justified within the terms of Article 36, it is nevertheless not allowed because it contravenes the principle of proportionality”
L Gormely, Prohibiting Restrictions on Trade within the EEC 1984
It is understandable that Member States may want to inspect incoming goods for public safety. The Court has been attentive in this area so as to ensure that the inspection of these goods is for bona fide reasons and again not a plot to effect quantities or increase revenue.
Once a Country has joined the community system and has adopted the directives of the EU it is difficult for them to use Article 36. An introduction of a common market may raise the standards of one State, and slightly lower the standards of another. This is why Member States’ acts will be subjected to scrutiny by the Court of Justice and will have to conform to whatever limits laid down by Community Directives. The introduction of a trade ban which has already been terminated by the EU is a violation of an EU directive therefore the member State will be given little latitude in their argument.
4.0 Bibliography
World Web
WWW2.echo.lu/legal
Books
McMahon, B., (1993) European Community Law in Ireland. Butterworths.
Weatherill, S., (1995) EC Law. Penguin.
Goyder, D.G., (1993) EC Competition Law. BCI.
George, S., (1990) Politics and Policy in Europe. Penguin.
Shaw, J., (1993) European Community Law. Cortwell
Goldman, B., (1973) European Commercial Law. Penguin.
Elles, N., (1989) Community Law through Cases. TGC books.
Smit, H., (1986) Columbia Law School Project On Europe. Chapman and Hill.
Gormely, L., (1984) Prohibiting Restrictions on Trade within the EEC. Penguin.
Other Sources
Mulconry, S., (1999) “France V UK”, in Business and Finance. 4 October.
Marlowe, L., (1999) “French set to Continue in Beef Ban” in The Irish Times. 23 October Page 7 of 9.
