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

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European Union Law – LLB

Law and Institutions of the European Union


[D]erogation … a temporary waiver from a regulation or … directive.


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 Treaty expects the structure to be that of a customs union. 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) 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.

  • 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;
  • public policy;
  • protection of industrial and commercial property, and for;
  • public security (which encompasses) the;
  • protection of health and life of humans, animals and plants, or the;
  • protection of national treasures possessing artistic, historic, archaeological value.                

Given the importance of the 'fundamental principle' for the free movement of goods, it is unsurprising to find that invoking Article 30 will be closely scrutinised and restrictively interpreted. Indeed Article 30 warns that, “[s]uch prohibitions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.” This is an approach the Court of Justice will adopt in regard to derogations generally.

  • Protection of animals and plants

The Crayfish case concerned German legislation prohibiting the importation of live crayfish due to fears that disease might befall the indigenous crayfish population, as well as anxieties that plant life might be adversely affected. However the ECJ held that the regulation, whilst justifiable, was not justified as the measure was disproportionate to its objective aims; therefore it breached Article 30.

  • Protection of human health and life

In the absence of harmonising rules in regard to plant protection products the Commission maintains that Member States may impose prohibitions on importing and marketing such products from other Member States in which those products have been lawfully marketed, in the interest of public health.

In the Fumicot case the court interpreted Article 30 + 36 as allowing the Dutch government to subject French disinfectant to further scientific testing, in accordance with Dutch legislation; even though the disinfectant had complied with French legislation and scientific testing.

That ruling was confirmed in the case of  Brandsma concerning the selling of a fungicide in Belgium, that originated in the Netherlands. Importantly in both and all such cases the court is at pains to stress that the importing Member State seeking to justify their measures that have an effect equivalent to a quantitative restriction within the meaning of Article 30, must satisfy the principle of proportionality. Therefore duplicating the testing already legally complied with in the originating Member State is likely to breach Article 30.

There are yet further derogations defined by the Treaty available.

  • Common commercial policy

Article 134 allows for derogation from the free movement of goods principle to safeguard the execution of the Common Commercial Policy (CCP). This would apply for instance, if there has been a deflection of trade caused by subsidised imports from a country external to the community.

  • Military procurements

Article 296 permits the withholding of information that Member States believe to be essential for their security. Member States are allowed to take the necessary steps to protect essential security interests regarding their munitions, arms, and war materials production or trade. This must not, however, adversely affect the competition for products not meant for military purposes.

This particular Treaty Article has been subject to some tension between the respective tugging of Member States and the Commission. Member States have regarded it as an automatic derogation for hard defence products, whilst the Commission interpreted the provision as requiring explicit declaration by Member States.

In the recent case of Commission v Spain the ECJ clarified the operation of Article 296. The court ruled that, in fact, Member States needed to make an explicit declaration justifying their reliance on the provision. The court said that, “it is for the Member State which seeks to rely on those exceptions to furnish evidence that the exemptions in question do not go beyond the limits of such cases”.

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  • National security

Article 297 allows derogation in circumstances that threaten the preservation of law and order due to serious internal disturbances; of war or the threat of war and such consequential tensions internationally; or to comply with responsibilities to preserve peace and international security.


Imperative requirements

Derogations are also to be found outside of those declared explicitly by Treaty. In a period known as 'judicial activism' the ECJ was able to take the principle for the free movement of goods onwards from what had been its resting-place. In the seminal case of Cassis the ECJ ruled that a Member State retained ...

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