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.
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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 their right to regulate matters that had not yet been subjected to community rules on harmonisation. However;
“State regulation of such areas must be accepted together with any obstacles to trade which may follow from disparities in national laws, but only in so far as these trade rules can be justified by one of the mandatory requirements.”
The Cassis judgment had now expanded Article 28s reach. Previously it had only been considered as relating to situations in which a Member State discriminated in the way it treated domestic products compared to those imported. Now it was possible to breach Article 28 where the same regulation applied to both domestic and imported goods, where that regulation was found to adversely effect the free flow of goods across borders, known as 'indistinctly applicable' rules. More succinctly, “[S]ince the Cassis de Dijon case, the presence of discrimination has been established to be a sufficient though not always necessary factor in invoking Article 30 [now Art. 28]”
Derogation from Article 28 in these circumstances is possible if the Member State can justify the rule under one of the ‘mandatory requirements’. Article 30 provides an exhaustive list of justifications for derogation, whilst the list of mandatory requirements is not exhaustive. Some of the mandatory requirements are;
Consumer protection
-
Fairness of commercial transactions
-
Public health
-
Fiscal supervision
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Protecting the environment
-
Protection of cultural art forms.
The cases of Cinéthèque, Torfaen and Familiapress provide some examples of the possibilities of expanding the list of justifications put forward in defence of derogations available via ‘mandatory requirements’.
The case of Torafen concerned the issues of Sunday trading legislation in the UK. Although the legislation in question was considered to fall within the ambit of Art 30 (now Art 28) the ECJ determined that it would be allowable if the measure was proportionate to its aims. The ECJ said that ‘[s]uch rules reflect certain political and economic choices … to accord with national or regional socio-cultural characteristics, and that, in the present state of Community law, is a matter for the Member States’.
The ECJ in the Cinéthèque case accepted that, “the protection of the cinema as a means of cultural expression … was necessary in order to ensure the continued creation of cinematographic works … for the continued production of films”. The Commission also provided some positive support stating that, “cultural aims may justify certain restrictions on the free movement of goods provided that those restrictions apply to national and imported products without distinction”.
In the Familiapress case the ECJ stated that, “press diversity may constitute an overriding requirement justifying a restriction on free movement of goods”. The court highlighted that it found support of its reasoning in the European Convention on Human Rights as well as Community law. Generally it would seem that any ‘mandatory requirement’ currently accepted and those yet to be established, must also exist within the realms of Community law, or at the very least be a public interest requirement.
It is worth clarifying that should an apparently indistinctly applicable measure clearly have a protectionist intention by a Member State, they will only have recourse to justifications available under Article 30.
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Proportionality
The majority of the justifications submitted for the purpose of derogation will be subject to the principle of proportionality. In the Safety Hi-Tech case the ECJ decided that the regulation concerning the marketing of HCFCs was proportional under the mandatory requirement of ‘protecting the environment’.
In another case Germany subjected only imported plants to a phyto-sanitary process to reduce the risk of spreading San José Scale disease. The measure was in principle justified under Article 30 but was ruled disproportionate and so breached Article 28. There are numerous examples of the judicial determination that measures adopted by Member States to achieve their objectives are disproportionate.
Of course there are also many examples of the ECJ referring cases back to national courts, instructing them to make the determination concerning the issue as to whether or not the principal of proportionality has been adhered to. The ECJ considering national courts to be better placed to make, “an analysis of the circumstances of law and of fact which characterises the situation in the Member State concerned”.
Classic proportionality concerns not the level of protection being sought but rather, the measures employed to achieve that protection. It has been suggested that the burden of proof placed upon Member States is very high, placing a Member State’s attempts at banning imports into the category of ‘extremely difficult’, when trying to pass the test of proportionality.
One criticism of the ECJ is that in its analysis of the proportionality of Member States actions, there is a tendency to bring into negative focus, the economic character of the justification.
However in the case of Aher-Waggon a Member State succeeded on various levels to overcome such difficulties. The court found that not only were the measures enacted by the Member State defined as “the most effective and convenient means of combating noise pollution”, but that they also considered them to be “extremely” cost effective.
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Conclusion
Member States are quite rightly subject to the burden of proof, generally, when seeking to rely on derogations. But the task should not be made artificially difficult. It is apparent that a lack of clarity exists in regard to some of the terminology used by most people in this area of European law.
Christopher Hilson promotes the need for uniformity in the definitions used by the courts, and especially by academics, for terms such as discrimination, indistinctly applicable and non-discrimination. Their bearing and meaning are important in regard to how the court will deal with the issues raised. 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’.
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”
Notaro points out that, in fact, the ‘concept of necessity’ 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’. 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 Bottles 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?
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. 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’. It should be noted then that a Member State cannot nullify a breach by another Member State by adopting unilaterally protective measures.
An understandably common justification for derogation in relation to food products, is that of consumer protection. On such issues the ECJ has often determined that the actions of the Member State have been disproportionate to their aims. A common outcome by the ECJ is to instruct that additional information should be added to a product’s information label to better inform consumers. This is seen as providing consumer protection with the least restrictive impact on the free flow of goods.
Some commentators have declared their anxiety “that the Court of justice emphasises free trade too much and the local needs of consumer protection too little”, particularly in light of the Cassis formula of ‘mutual recognition’. The concern being that the system that is developing is one that, “permits the lowest quality variant of a foodstuff to be legitimately marketable in any Member State”.
Food-safety is an area of community life that affects all its citizens. The argument that labelling sufficiently eliminates risks that have been highlighted as real under the current arrangements is unconvincing. The reality of life for the ordinary citizen is very diverse and so their consumer safety needs can not be met by any one measure applied in a general fashion.
Perhaps the formation of the new European Food Authority (EFA) will address what is seen as a badly weighted agenda. Unfortunately the talks, at the recent EU summit, as to where the EFA should be sited came to a childish halt recently as representatives hurled verbal abuse at each other. The signs are not yet very encouraging.
Of course the journey upon which we currently travel is toward the integrated market place in which either harmonisation or the single indistinguishable market place exists. Member Sates will not find derogation as easy, comparatively, to achieve as the justifications will increasingly be harder to achieve. It would seem that we continue to travel the route of negative harmonisation.
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European Community Treaty (changed from EEC November 1st 1993 via Treaty on European Union)
Commission v Luxembourg & Belgium (Cases 2 and 3/62) [1962] ECR 425
Old Articles 31-33 were repealed by the Treaty of Amsterdam 1997
Co-Frutta v Amministrazione delle Finanze dello Stato (Case 193/85) 1987 ECR 2085
R v Henn & Darby (Case 34/79) [1979] ECR 2795; Conegate Ltd v Commissioners of Customs and Excise (Case 121/85) [1986] ECR 1007
Cullet v Centre Leclerc, Toulouse (Case 231/83) [1985] ECR 305
Compare Van Zuylen Frères v Hag AG (Case 192/73) [1974] ECR 731with; SA CNL-Sucal NV v Hag GF AG (Case C-10/89) ECR I-3711
Campus Oil Ltd v Minister for Industry and Energy (Case 72/83) [1984] ECR 2727
Officer van Justitie v Sandoz BV (Case 174/82) [1983] ECR 2445; Commission v Germany (Case C-131/93) [1994] ECR I-3303
Commission v Italy (Case 7/68) [1968] ECR 423; Eunomia di Porror & Co. v Italian Ministry of Education (Case18/71) [1971] ECR 811
Campus Oil Ltd. V Minister for Industry and Energy (Case 72/83) [1984] ECR 2727, at paragraph 37.
Bauhuis v Netherlands (Case 46/47) [1977] ECR 5
See for instance Salgoil v Italian Ministry for Foreign Trade (Case 14/68) [1968] ECR 453, at p.463; in regard to Article 296.
Commission v Germany (Case C-131/93) [1994] ECR I-3303
The ECJ suggested alternative measures to reach the objective aims that were also less restrictive to trade.
Frans-Nederlandse Maatschappij voor Biologische Producten BV (Case 272/80) [1982] 2 C.M.L.R 497, at paragraph 7 og the judgment.
Frans-Nederlandse Maatschappij voor Biologische Producten BV (Case 272/80) [1982] 2 C.M.L.R 497
Criminal proceedings against Jacqueline Brandsma (Case C-293/94) [1996] E.C.R. I-3159.
The frequency with which this Article has been used has reduced since adopting XXI General Report on the Activities of the European Communities, point 196 (1987)
The CCP relates to the Community’s external trading agreements with non-community countries, including protective strategies.
NTN Toyo Bearing Company v Council (Case 113/77) [1979] ECR 1185
Encompassing such things as tanks, fighter aircraft and warships etc.
(Case C-414/97) [1999] ECR I-5585
At paragraph 22 of the judgment.
Commission v Greece (Case C-102/94R) [1994] ECR I-3037
Between the 1960s & 1980s a period of stagnation occurred within the legislative branch of the EU slowing the process of harmonisation
Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (Case120/78) [1979] ECR 949
Harmonisation has the removal of technical barriers to trade amongst its objectives. See: Piet Jan Slot (1996) Harmonisation, E.L. Rev. 1996, 21(5), 378-387, for a fuller discussion.
Article 28 prohibits quantitative restrictions on imports and measures of equivalent effect.
Rules that seek to regulate trade, not for protectionist measures.
Howarth, William (1990) The Single European Market and the Problem with Fish Movements, E.L. Review 15(1), 34-50.
Also known as ‘imperative requirements’.
Italy v Commission (Case 95/81) [1982] ECR 2187
The original list has been added to see: Commission v Belgium (Case c-2/90) [1992] ECR I-4431; Or Cinéthèque SA v Fédérattion Nationale des Cinémas Français (Case 60 & 61/84) [1985] ECR 2605
Commission v Germany (Case 178/84) [1987] ECR 1227; Commission v Denmark (Case 302/86) [1989] 1CMLR 619
Oosthoek's Uitgeversmaatschappij BV [1982] ECR 4575
Gianni Bettati v Safety Hi-Tech Srl (Case C341/95) [1998] ECR I-4355
Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (Case120/78) [1979] ECR 949
Gianni Bettati v Safety Hi-Tech Srl (Case C341/95) [1998] ECR I-4355
Cinéthèque SA v Fédérattion Nationale des Cinémas Français (Case 60 & 61/84) [1985] ECR 2605
Cinéthèque SA v Fédérattion Nationale des Cinémas Français (Case 60 & 61/84) [1985] ECR 2605
Torafen BC v B&Q Plc (Case 145/88) [1989] ECR 3851
Vereinigte Familiapress Zeitungsverlags- und Vertreibs GmbH v Heinrich Bauer Verlag (Case C-368/95) [1997] 3 CMLR 1329
The ECJ left this determination for the national (referring) court.
At paragraph 14 of the judgment.
At paragraph 15-16 of the judgment.
At paragraph 18 of the judgement.
Article 10 – Freedom of expression.
A determination to be made by the ECJ themselves. See also Barnard, Catherine (2001) Fitting the Remaining Pieces into the Goods and Persons Jigsaw, E.L. Rev. 26(1) at p.45.
Commission v United Kingdom (Case 207/83) [1985] ECR 1201
The concept of proportionality was enshrined within Article 3(b) of the Maastricht Treaty (1997)
Gianni Bettati v Safety Hi-Tech Srl (Case C341/95) [1998] ECR I-4355
Hdrochloroflurocarbons determined as being a significant contributor in the depletion of the ozone layer.
Rewe-Zentralfinanz GmbH v Direktor Der Landwirtschaftskamme (Case4/75) [1975] ECR 843, [1977] 1 CMLR 599
Council Directive, 69/466 of December 8, (1969) Art. 11
The ECJ saw and suggested less restrictive alternative measures that could have been employed and achieved the same objective aims.
The court stated that it is “arbitrary discrimination if domestic products are not subject to an equivalent examination”
For example, excessive testing of Italian wine in EC Commission v France (Case 42/82) [1983] ECR 1013.
See for instance - Torafen BC v B&Q Plc (Case 145/88) [1989] ECR 3851
Konsumentombudsmannen (KO) v Gourmet International Products AB (Case 405/98) [2001] All ER (EC) 308 (ECJ)
J. Jans, European Environmental Law, Kulwer [1996] at p.218.
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
Aher-Waggon GmbH v Bundesrepublik Deutschland (Case C-380/96) [1998] ECR I-4473.
At paragraph 21 of the judgement
Hilson, Christopher (1999) Discrimination in Community Free Movement Law, E.L. Rev. 24(5), 445-462
Notaro, Nicola (2000) The New Generation Case Law on Trade and Environment, at p.13.
Commission v Denmark (Case 302/86) [1988] ECR 4607.
Commission v Ireland (Case 288/83 [1985] ECR 1761, at paragraph 28 of the judgment.
Eikenberg, Katharina (2000) ‘Article 296 (Ex 223) E.C. and External Trade in Strategic Goods’, at p.1.
Joined cases: Commission v Luxembourg and Belgium (Cases 90/63 & 91/63) ECR 625
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.
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.
MacMaolán, Caoimhĺn (2001) Free Movement of Foodstuffs, Quality Requirements and Consumer Protection: Has the Court of Justice Got It Wrong, E.L. Rev. 26(5), p414.
The single mother, people with learning disabilities and/or mental health concerns may find labelling information insufficient to protect their needs.
The removal of discrimination by Member States.