We are not so concerned with Article 29 as it deals with exports. In our scenario we are specifically dealing with imports. Now we will look in the types of restrictions on goods being imported, along with their effects.
The prohibition as between Member States is twofold, embracing:
- Quantitative restrictions, and
- Measures of equivalent effect to quantitative restrictions.
Quantitative restrictions have been defined as any measure which amounts to a total or partial restraint on imports…or goods in transit, as interpreted in Case 2/73, Riseria Luigi Geddo v Ente Nationale Risi [1973] ECR 865. They would also clearly indicate a ban, as in the case of Commission v Italy (Re Ban on Pork Imports), and a quota system.
A measure having equivalent effect is much broader than quantitative restrictions. A commission Directive (Directive 70/50 EC) gives some guidance as to the scope of measures having equivalent effect, although it no longer has legal effect. In the important case of Procureur du Roi v Dassonville [1974] ECR 837, the court of Justice set out an interpretation on the meaning and scope of measures of equivalent effect.
“All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions”
The two important aspects of this are the emphasis on the effect of a measure having, or importantly, merely potentially having, effect on trade, and that there is no need for discriminatory intent. A restriction to intra-Community trade is also necessary. This principle has been confirmed in the Court’s case law, with minor variations. Therefore it is clear from this that one must look to the effects of a measure rather than to its aims, in deciding whether it falls under Article 28.
After taking a lot of criticisms arising from the application of the Dassonville formula, the court took a decisive step in the case of ‘Cassis de Dijon’ (Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (case 120/78) which distinguishes distinctly and indistinctly applicable measures. In the case of Cassis the German law laid down a minimum alcohol level of 25 per cent for certain spirits, which included Cassis (blackcurrant-flavoured liqueur). German Cassis complied with the minimum alcohol level, but French Cassis did not as it has an alcohol content of 15-20 per cent. However although the German regulation was indistinctly applicable, the result of the measure was to ban French Cassis from the German market. In this case a number of German importers contested the measure. The ECJ applied the Dassonville formula, but developing a suggestion of the court in Dassonville that State measures falling within the formula might be acceptable where the restrictions on intra-Community trade were ‘reasonable’. This principle (‘the first Cassis principle’), states that certain measures, though within the Dassonville formula, will not breach Article 28 (ex 30) if they are necessary to satisfy mandatory requirements (known as the ‘rule of reason’). It confirms that Article 28 covers measures applying in the same way to domestic and imported goods. Also on the basis of this judgement has also been built the principle of “mutual recognition”, meaning that a Member State cannot, in principle prohibit the sale on its territory of goods which are lawfully produced and marketed in another Member State. This is the case even if those goods are produced to technical or qualitative descriptions that differ from those required of its own goods. Therefore when looking into our scenario, is it justifiable to ban CB radio imports, even though they have not been outlawed in the UK. This does not seem fair. So where else can we turn for help. This would lead to Article 30.
The principle provision for derogation from Articles 28 and 29 (ex 30-34) EC is Article 30 (ex 36) EC. Article 30 states that:
“The provision of Articles 28 to 29 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 of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”
Therefore where there is no Community harmonisation, it is up to Member States to set their own levels of protection. Since indistinctly applicable measures restricting imports from Member States, will now be subject to the rule of reason under Cassis (case 120/78), it will only be necessary to apply Article 30 (ex 36) EC to distinctly applicable measures in breach of Articles 28 and 29 (ex 30 and 34) EC. Where indistinctly applicable measures are clearly discriminatory in their effect on imports or fall within one of the heads of derogation of Article 30 (ex 36) EC, the court may consider the question of justification under Article 30 EC. Therefore even if a measure is justifiable under one of the derogation of Article 30, it must not ‘constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States’. It seems to be the case in our scenario that discrimination has taken place, as although imports of CB radios is banned, why has CB radios in the UK not been outlawed.
Now that we have discussed the authority behind the ban, the next step is to look further into the grounds for the ban, which in our case refers to immoral purposes.
Where an importer wishes to import a product, which is banned in the Member State of importation on morality grounds, then a prohibition on the imported product will not be discriminatory. It is up to each Member State to set the standards enabling goods to comply with national provisions concerning morality. However, any prohibition on imports of products the marketing of which is restricted but not prohibited will be discriminatory and in breach of the “free movements of goods” provisions. The public morality ground was considered in two English cases, R v Henn (case 34/79) and Conegate Ltd v Customs and Excise Commissioners (case 121/85).
In R v Henn, the then Article 36 (now 30) was invoked to justify a ban on the import of pornographic materials. The ban was held to be discriminatory, since not all the pornographic material of the kind subject to the ban, was illegal in the UK. In the UK it was illegal only if likely to ‘deprave or corrupt’, whereas under UK customs legislation, import was prohibited if the goods were ‘indecent or obscene’. The ECJ found that the ban was in breach of the then Article 30 (now 28) but was justified under former Article 36 (now 30). This was due to the fact that it was discriminatory, however the discrimination was not arbitrary; nor was it a disguised restriction on trade between Member States; there was no lawful trade in such goods in the UK. Therefore the measure was genuinely applied for the protection of public morality, and not for the protection of national products.
However the court took a much stricter view in Conegate Ltd v Customs and Excise Commissioners. In this case Article 36 (now 30) was invoked to justify the seizure by HM Customs and Excise of a number of inflatable rubber dolls together with other exotic and erotic articles imported from Germany, on the grounds that they were ‘indecent and obscene’. The importers claimed that the seizure was in breach of the then Article 30 (now 28), as there was no ban on the manufacture and sale of such items in the UK, therefore being discriminatory. The court held that the seizure was not justified under the then Article 36 (now 30), as unlike R v Henn, there was no general prohibition on the manufacture and marketing of such goods in the UK. Neither did they adopt serious and effective measures to prevent the distribution of such goods in its territory.
The main case for the scenario is whether the ban is justified or not. Firstly both the parties, referring to Ms. Richardot and Ms. Haggis should have enquired into any measures created by the UK effecting their agreement. However if the ban was recent and not in existence at the time the contract was made, then the two parties are not to blame, for their lack of investigation.
However overall past cases and arguments taken place, would presumably distinguish the party at fault, meaning whether the ban was justified or not. Looking through my research essay it can be said that there are many cases mentioned which apply to our scenario and are capable of challenging the validity of the ban.
Bibliography:
Textbook on the Law of the European Community – 3rd Edition
Chris Vincenzi and John Fairhurst
Textbook on EC LAW- 7th Edition
Josephine Steiner & Lorna Woods
Textbook on European Union Law
Andrew Evans
EU Lecture Notes 2001
