Free Movement of Goods in EU Law: Non-Fiscal Trade Barriers

Introduction

• Discussion Focus: Non-fiscal trade barriers in EU law
• Previously covered: Fiscal trade barriers
• Importance: Crucial area, commonly questioned in exams

Classification

• Trade Law divided into two parts: fiscal and non-fiscal barriers
• Fiscal barriers: Customs duties (Articles 28 and 30 TFEU) and discriminatory taxation (Article 110 TFEU)
• Non-fiscal trade barriers: Quantitative restrictions (QRs) and measures having equivalent effect (MEQRs) as quantitative restrictions (Articles 34-36 TFEU)

Key Articles

• Article 34 TFEU: Prohibits QRs and MEQRs on imports between member states
• Article 35 TFEU: Prohibits QRs and MEQRs for exports
• Article 36 TFEU: Allows derogations for QRs and MEQRs on specific grounds

Quantitative Restrictions (QRs)

• Meaning: Total or partial restraint on imports, exports, or goods in transit (Gedo case)
  • Example: Prohibition on export beyond a specific quantity (Lelain case)
• Justifications under Article 36 TFEU: Public morality, security, protection of health, etc.

Measures Having Equivalent Effect (MEQRs)

• Initial definition in Directive 70/50: Wide-ranging, covering rules on shape, size, labeling, etc.
• Dassonville Case: Expanded definition to include any trading rule potentially impeding intra-EU trade
• Cassis de Dijon Case: Introduced the 'Principle of Mutual Recognition' and 'Rule of Reason'
  • Mandatory requirements: Environmental protection, consumer protection, etc.
• Keck Case: Refined scope, distinguishing between product requirements and selling arrangements
  • Selling arrangements: Rules about where, when, and how goods are sold (generally not MEQRs)
  • Product requirements: Rules necessitating physical alteration to the product (still MEQRs)

Post-Keck Law: Access to Market Test

• Recent cases: Expanded focus on whether national rules impede market access (Gourmet International case)

Derogations and Justifications

• Article 36 TFEU: Justifications for QRs and MEQRs
• Public Morality: Controversial, case-by-case basis (Henn and Derby case)
• Public Policy: Must involve fundamental interest of the state (Thomson case)
• Public Security: Protection-related constraints (Campus Oil case)
• Public Health/Precautionary Principle: Health risk management (Comm. vs. Denmark case)

Proportionality Test

• Ensuring measures are suitable, necessary, and not excessive relative to the objective pursued

Conclusion

• Importance of distinguishing between different types of barriers and their justifications
• Recent trends focus on market access and proportionality
• Application to problem questions involves thorough analysis using provided tests and precedent cases