The Limitations on the Application

In this section we will examine the limitations of the Measures having equivalent effect to quantitive restrictions both arise from the legislation and the case law.

3.1 THE LIMITATIONS ARISE FROM LEGISLATION: ARTICLE 36 TFEU

According to Community trade law, any derogation which is not construed strictly, is hostile to achievement of the common market. This principle is seen concretely in the form of Article 36 TFEU (ex Article 30 EC) (Weatherill, 2007, p. 359).

Article 36 TFEU provides:

“The provisions of Articles 34 and 35 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”.

In the first sentence of the Article 36 TFEU, we see the exhaustive list of grounds in which the Article 36 TFEU could be invoked. These grounds are: 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

In the second sentence we see the constraints of the derogations to prevent the free movement of goods from tricks to protect domestic industry. As Barnard mentions, first constrain is the strict interpretation of the derogations. The exceptions listed in Article 36 TFEU cannot be extended to include cases other than those specifically laid down (2007, p. 66). Therefore Derogations should not be invoked arbitrarily, moreover, they may not cause to a disguised discrimination between member states. In order rely on Article 36 TFEU, a measure should be justified objectively (Weatherill, 2007, p. 359). Another condition which a national rule has to fulfil in order to be considered satisfied under Article 36 TFEU is that it must not constitute arbitrary discrimination nor a disguised restriction on trade between Member States. The function of this condition is to prevent restrictions on trade based on one of the derogations mentioned in the first condition of Article 30 EC from being diverted from their purpose and used in such a way as either to create discrimination in respect of goods originated in other Member States or indirectly to protect certain domestic products.

Another constrain of the restriction of free movement of goods via derogations is the principle of proportionality. As mentioned by Barnard, Proportionality comprises essentially two tests: a test of suitability and a test of necessity. First the relationship between the means and the ends must be suitable: the means employed by the test must be suitable. The second test is one of weighing competing interests: the Court assesses the adverse consequences that the measure has on an interest worthy of legal protection and determine whether those consequences are justified in view of the importance of the objective pursued. Sometimes this second limb is viewed as having two distinct elements: determining whether there are other less restrictive means of producing the same result and even if there are no less restrictive means, confirming that the measure does not have an excessive effect on the applicant’s interests. Therefore the essential characteristic of the proportionality principle is that the Court performs a balancing exercise between the objective pursed by the measure at issue and its adverse effects on individual freedom. The burden of proving that the steps taken are proportionate rests with the Member States. Usually, the question of proportionality is a matter for the national court to decide, but the ECJ often intervenes. While proportionality has proved the most significant general principle of law limiting Member States’ right to rely on one of the derogations, the Court has also emphasized that fundamental rights, including freedom of expression, the freedom to pursue a trade or profession, and the right to own property can limit a State’s discretion (Barnard, 2007, pp. 79-82). (PROPORTIONALITY BENI BITIRDIII)

The problem with derogations is the fact that it indicates the priorities of the community in 1957. Although these grounds have been expanded they are not impeded into the Article 36 TFEU thus the derogations under the Article 36 may remain insufficient. Therefore with Cassis Case some mandatory requirements have been added to put limitation to free movement of goods through case law.(bu nerden yaaa)

Finally, Article 36 TFEU allows Member States to apply rules prohibited under article 34 provided they are justified on the grounds of public morality, public policy, public security, protection of health and life of humans, animals or plants, protection of national treasures possessing artistic historic or archaeological value, or protection of industrial and commercial property, and as long as the measures do not arbitrarily discriminate or are a disguised restriction on trade. Also it must be proportionate.