Compatibility of Safety Inspection Measures in France, Romania

Question ONE

This essay considers three fictitious measures adopted by France, Romania, and Italy, and discusses whether these measures are compatible with European Union Law.

With regard to France, the question is whether the measures for safety inspection by accredited inspectors amounts to restrictive measures that are not compliant with Article 30 of the TFEU.

Article 30 of TFEU bars customs duties on imports/exports and CEE’s on goods imported from EU Member States. CEE was defined in Commission v Italy, as any pecuniary charge, irrespective of its cost and designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense constitutes a CEE.... even if it is not imposed for the benefit of the state, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with the domestic product.” In Commission v Germany, the CJEU explained the conditions in which inspection fees can be charged without being in breach of TFEU. For students who are struggling with intricate legal concepts, seeking law dissertation help can offer the most valuable guidance in navigating complex topics. In this case, Germany was charging animal inspection fees as required by an EU Council Directive and for this they were permitted. The court also explained the conditions in which such inspection fee would not be in breach of Article 30. Such fee has to be in consideration for services rendered and proportionate to that service. Furthermore, such fee should not exceed the actual costs of the inspections with which they are charged, and the inspections must be obligatory and uniform, prescribed by Community law in the general interest of the Community; and in promotion of the free movement of goods. Inspection fee can be a measure that creates a differentiation between the domestic goods and goods imported from other EU Member States. In one case, the court held an inspection fee on imports of cow hides imposed by Italy to be a measure that acted like a tax, treating domestic and imported products differently.

France has adopted measures to the effect that it will allow only such pilates gym equipment to be imported, that is inspected by accredited inspectors. For this, importers will have to pay for the safety inspection. France has adopted these measures saying that this is to ensure that the equipment complies with the safety standards of France which are stricter than those of larger neighbouring countries. However, the conditions of Commission v Germany are not complied with because these measures are not obligatory and uniform and are not prescribed by Community law in the general interest of the Community. Furthermore, these do not lead to promotion of the free movement of goods but, cause impediment by charging only importers of the equipment. Therefore, based on the law discussed above these measures may amount to CEE and not be permitted under Article 30 of the TFEU.

With respect to Romania and France, the issue is whether the measures are in breach of Article 34 of the TFEU. Article 34 requires respect for principles of non-discrimination and mutual recognition of products lawfully manufactured in other Member States and there is a prohibition on quantitative restrictions on imports and all measures having equivalent effect. In Geddo, the CJEU explained the term quantitative restrictions as measures amounting to a total or partial restraint of imports, exports or goods. Therefore, quantitative restrictions are not permitted although these may be justified under the limited circumstances allowed by Article 36. In Dassonville, trading rules capable of obstructing trade were held to be measures amounting to quantitative restrictions. MEQR is defined as all trading rules capable of hindering, “directly or indirectly, actually or potentially, intra-community trade.”

Furthermore, the CJEU has devised tests to assess whether the measures adopted by the state are in breach of Article 34. The court applies the discrimination test which provides that that if the law applies to all traders (domestic and Member States) in the same manner and affects them all in the same way, then these are not in breach of Article 34. If the measures are discriminatory, then they are automatically in breach of Article 34. Furthermore, the market access test is applied after the measures pass the Keck test. Thus, measures can amount to MEQR if these are distinctly applicable, indistinctly applicable, indistinctly applicable product requirements, and product use rules. Some measures may not be permissible even though not explicitly differentiating between domestic and other goods, but because of an implicit differentiation. Member States may be allowed to make such measures under Article 36 if they are justified by non-economic considerations, including those of public health. The measures have to be justified provided that such measures have the direct effect on the public interest to be protected as per the principle of proportionality. Thus exceptions are allowed on the ground of public health. However, the measures must serve a legitimate aim, be within scope of ‘rule of reason’ within and applied in a proportionate manner. Gebhard, the CJEU held that such measures should be non-discriminatory and in general interest as well as be proportionate to the objective sought to be achieved. Measures made under Article 36 or Cassis principle, have to be notified under Regulation (EC) No 764/2008. This requirement serves to discourage Member States from hindering trade and therefore, a written notice to the importer and the Commissioner is required under the law.

The Romanian measures ban French lamb on the ground of scientific evidence that shows that a dangerous virus could be passed to all livestock through French lamb, although such evidence is not settled. Romania may not be allowed to make these measures on the ground of public health because they are not proportionate as the evidence on the harmful effects of the French lamb is not as yet settled. The French government’s law banning the importation of Romanian sausages on the ground that they are not sufficiently tested to pass French health and safety laws will be in breach of Article 34 as these amount to quantitative restrictions without any justification.

With respect to measures adopted by Italy, the question is whether these amount to breach of Article 34 and amount to quantitative restrictions. Quantitative restrictions are measures restricting the volume of goods or even banning them. Total or partial restraint of imports can amount to quantitative restrictions. States may make such restrictions only of justified by Article 36 which allow restrictions on the basis of general and non-economic considerations, which also include public policy. In order to be justified, such measures must be shown to have direct effect on public interest and be proportional. Even so, there is a requirement that such measures are not discriminatory in nature. This was explained in the case of Keck, where the court held that if a law that provides restrictions applies to all traders in the same manner and affects them all in the same way, Article 34 is not breached. Thus, for the measures to be justified, they must not be outright discrimination. In case of being discriminatory, that is, not applying to all traders in the same way and affecting them in the same manner, the measures are in breach of Article 34. In other words, if the state considers pornography to be against public interest and makes a law banning all pornography including domestic, then the measures may not be in breach of Article 34 and justified under Article 36.

In this situation, Italy has confiscated pornographic magazines from a supplier in Holland because they contravene Italian laws on the importation of obscene material but, pornographic material can be traded legally within Italy. Therefore, there is a discrepancy here in how the law impacts the traders of pornography with the restrictions only applying to the traders of pornographic material from outside of Italy while within Italy the material is traded. Therefore, there is discrimination against traders who are importing the pornographic material and not on traders who are trading the material within Italy. Applying the Keck test, the measures that amount to outright discrimination, are considered to be in breach of Article 34. These measures cannot be saved by Article 36 as well because when the measures are made on grounds of public policy, these also have to be uniformly applicable to all traders. In this situation, there is a difference between domestic and non domestic traders for which reason, it can be said that the Italian measures contravene Article 34 and are not saved by Article 36.

To conclude, the French measures may amount to CEE and not be permitted under Article 30 of the TFEU. The Romanian measures banning French lamb are not proportionate as the evidence on the harmful effects of the French lamb is not as yet settled. The French government’s law banning the importation of Romanian sausages on the ground that they are not sufficiently tested to pass French health and safety laws will be in breach of Article 34 as these amount to quantitative restrictions without any justification. The Italian measures differentiate between domestic and non domestic traders and therefore, are in breach of Article 34.

Table of cases

Bresciani v Ammistrazione Italiana della Finanze [1976] ECR 129.

Cassis de Dijon [1979] ECR 649.

Clinique [1994] ECR 317.

Commission v Germany [1988] ECR 5427.

Commission v Italy [1969] ECR 193.

Commission v. Italy (Trailers) [2009] ECR I-519.

Commission v UK (Import of UHT Milk) [1983] ECR 203.

Criminal Proceedings against Bernard Keck and Daniel Mitouard, ECR 1993, p I-06097.

Ker-Optika bt v ÀNTSZ Dél- dunántúli Regionális Intézete [2010] ECR I-12213.

Procureur du Roi v. Dassonville [1974] ECR 837.

Reinhard Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECRI-4165.

Riseria Luigi Geddo v Ente Nazionale Risi [1973] ECR 865.

Books

Craig P and Gráinne De Búrca, EU law: text, cases, and materials (Oxford: Oxford University Press 2011).

Journals

Lianos I, ‘In Memoriam Keck: The Reformation of EU Law on the Free Movement of Goods’ (2015) 40(2) EL Rev 225.

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