Free Movement of Goods in the European Union

The treaty on the functioning of the European Union promotes free movement of goods within the Member States for the purpose of attaining a free market herein and such free movement of goods also prohibits any monopolistic attitude adopted by any Member State as well. Section 26 to 36 of the Treaty on the Functioning of the European Union deals with the “arbitrary custom duties or any charges of similar nature imposed on import or export by any Member State and monopolies adopted by any Member State in commercial nature.” If you are delving into the complexities of European Union policies and their impact on trade, seeking economics dissertation help can offer the best insights.

A) Article 26 of TFEU essentially directs all the Member States to adapt to an internal market without any internal frontier for the purpose of free movement of goods, persons and services herein. Also, article 28 of the TFEU essentially prohibits Members States from imposing any specific custom duties or any charges of the similar nature while trading with any other Member State and article 28 also encourages Member States to adapt a custom union that will ensure article 26 of TFEU herein

In the instant given problem, France has levied a safety inspection fee on the other Member States to import gym pilates to France. To discuss whether this safety fee imposed by France is legitimate or not as per the directives of article 26 and 28 of TFEU, we shall discuss whether the abovementioned safety fee comes under “charges having equivalent effect” or not by referring to case laws herein.

In the case of Commissioner of the European Communities v Italy, the European Courts of Justice held that “charges having equivalent effect” of article 28 of TFEU shall cover any unilateral charges imposed by any Member State’s domestic law. Thus, according to EU, a Member State must not impose any such charges which is a one way rule and specifically imposed on a particular product herein. The same decision of held in the case of Sociaal Fonds voor de Diamanterbeiders v SA Ch Brachfield and Sons and Chougol Diamond CO, where the ECoJ held that for the purpose of passing the definition of “charges having equivalent effect”

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1. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1, s. 26-39
2. TFEU, s.28
3. Commissioner of the European Communities v Italy, Case 24/68 , [1996] ECR
4. Sociaal Fonds voor de Diamanterbeiders v SA Ch Brachfield and Sons and Chougol Diamond CO, Case 2/69 and 3/69, [1969] ECR 30

the court must look into three main characteristics herein – i) whether such charges have been levied under the Member State’s domestic law, ii) whether such charges are a must while importing a particular product, iii) whether such charges are increasing the product price in such a manner that it shall disturb the free movement of goods within Member States herein.

However, in the given case, France has levied such charges for the safety purpose i.e. a question might raise whether it is in concern with public safety or not. In refer to such issues, the case of Commissioner of the European Community v. Germany, it was held that any charges, levied for the purpose of certain product inspection which is in affirmation of the EU Directive principles, shall not be held as a “charges having equivalent effect” under article 28 of TFEU herein. In the instant case, France’s safety inspection fee is in accordance with their domestic law and not with any directive principles issues by the European Union herein. Thus, from the abovementioned discussion, it can be held that France’s safe inspection shall fall under the category of “charges having equivalent effect” of article 28 and it shall be in contravention to article 26 of the TFEU, the free movement of goods within Member States.

B) TFEU, article 36 provides a necessary exception to free movement of goods as mentioned under article 26 of the TFEU. Under article 36, it has been mentioned that any prohibitions of restrictions which have been imposed on any import or export of goods by any Member State on the ground of “public health, morality, security of protection of health of animal or plants”, shall be allowed and it shall not be held as arbitrary under TFEU.

Thus, from the abovementioned problem, it can be seen that Romania has prohibited or restricted the import of meat from France after some reports have published the possibility of certain virus in the French Lamb. While this action of Romania violates article 26 of TFEU i.e. the free movement of good but it essentially comes under the provision of article 36 of TFEU. The possibility of such virus shall have a dangerous effect on the public health and thus, such restriction is justified. Although such reports do not have conclusive scientific evidence, the possibility is reason enough to impose article 36 of TFEU and Romania’s prohibition comes under the textbook definition of article 36 of TFEU herein.

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5. Commissioner of the European Community v. Germany, Case 18/87, [1988] ECR 5427

However, in response to Romania’s recourse to article 36 herein, France has imposed a ban on imports of livestock from Romania and as a reason France has stated that Romania’s livestock does not pass the test of certain safety measures of public health herein. The restriction imposed by France attracts the commentary of Wetherill, that the imposition of article 36 has to be extremely strict and any prohibitions or restrictions shall not be imposed by any Member State arbitrarily. In order to comply with article 36 of TFEU, the Member States have to notify the European Commission’s national exemptions and sufficient evidences must be submitted in favour of such restriction of freedom of movement of goods herein. As it has been held in the case of Cassis De Dijon, merely domestic law which only arbitrarily discriminates against certain Member State shall not be regarded as valid prohibition. Also, Decision No 3052/95/Ec Of The European Parliament And Of The Council, essentially provides guidelines and provisions for Member States on mutual recognition of any restrictions or prohibitions imposed by any Member State under article 36 of TFEU. Unless and until, the Member State is adhering to all such regulations and guidelines provided by the EU and no mutual recognition has been achieved regarding the nature of imposing of article 36 of TFEU, the restriction shall not be regarded valid herein.

Thus, from the abovementioned discussion, it can be concluded that Romania’s prohibition shall be held as valid under article 36 of TFEU as it comes from a scientific evidence which is approved by the European Commission but France’s ban towards Romania is invalid under article 36 of TFEU as it engages in a discriminatory behavior which ultimately imposes an arbitrary measure against a certain Member State herein.

C) Article 37 of TFEU provides a certain guideline which restricts the monopolies adapted by any Member State and such monopoly as has been adapted by the Member State must be commercial in nature. Thus, article 37 expressly prohibits any monopolistic attitude adapted by any Member State towards trade of any good which is commercial in nature. Such adaption to any monopolistic attitude shall be regarded as in violation of article 26of TFEU herein.

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6. Stephen Weatherill; “Cases and Materials on EU Law” (2007); 12th edn, Oxford University Press
7. Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon) 1979 ECR 649
8. Decision No 3052/95/EC of the European Parliament and of the Council; “Establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community” (13 December 1995) OJ L 321, 30.12.1995, p. 1–5

In the given case problem, the Italian customs restrict the import of pornographic magazines which is otherwise legal in Italy and such pornographic material can be traded legally within Italy. Thus, from the scenario of the problem, it is evident that Italy gives permission in trading pornographic magazines within the borders of Italy i.e. within companies which are Italian and prohibits any import of pornographic magazines from the Member States. Such qualitative restriction hinders the free movement of goods within Member States and it also gives away Italy’s monopolistic business in circulating pornographic magazines or any trade of the same nature within the country and such rules are monopolistic in nature. In the case of Valev Visnapuu v. Kihlakunnansyyttäjä, the ECoJ adhered to a narrow interpretation of article 37, where it was held that in order to invoke article 37, the exclusive application of monopoly should be established and such monopolistic attitude should not be vague in nature.

Thus, if we critically analyze the attitude of Italy’s imposition of ban on import of pornographic magazines from other Member States, it can be seen that such behavior is done exclusively to save the pornographic business of the State herein and such arbitrary safeguard which does not fall under any categories of article 36 i.e. the safeguard against pornographic magazines does not fall under “artistic, archeological or historic value or protection of industrial or commercial property” as Italy has not applied for any mutual recognition under the EU herein and the Italian customs ban on pornographic material is absolutely arbitrary in nature and completely falls under the dictation of article 37 of the TFEU herein.



Thus, from the abovementioned point of view as discussed in details herein regarding the monopoly of one Member State of commercial nature, it can be said that Italy shall violate article 26 of TFEU by putting a ban or restriction without any proper mutual recognition under the EU law herein. The Italian customs have arbitrarily restricted the pornographic material which is otherwise is traded legally and without any restrictions within the borders of Italy. Hence, it can be held that it goes strictly against article 26 of the Treaty on the Functioning of the European Union.

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9. Cuyvers, Armin. “Free Movement of Goods in the EU.” East African Community Law: Institutional, Substantive and Comparative EU Aspects, edited by Armin Cuyvers et al., Brill, LEIDEN; BOSTON, 2017, pp. 326–344
10. C-198/2014, Valev Visnapuu v. Kihlakunnansyyttäjä
11. Decision No 3052/95/EC of the European Parliament and of the Council; “Establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community” (13 December 1995) OJ L 321, 30.12.1995, p. 1–5

BIBLIOGRAPHY

Book

Stephen Weatherill; “Cases and Materials on EU Law” (2007); 12th edn, Oxford University Press

Journal

Cuyvers, Armin. “Free Movement of Goods in the EU.” East African Community Law: Institutional, Substantive and Comparative EU Aspects, edited by Armin Cuyvers et al., Brill, LEIDEN; BOSTON, 2017, pp. 326–344

Case laws

Commissioner of the European Communities v Italy, Case 24/68 , [1996] ECR

Commissioner of the European Community v. Germany, Case 18/87, [1988] ECR 5427

Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon), Case 120/78, 1979, ECR 649

Sociaal Fonds voor de Diamanterbeiders v SA Ch Brachfield and Sons and Chougol Diamond CO, Case 2/69 and 3/69, [1969] ECR 30

Valev Visnapuu v. Kihlakunnansyyttäjä, C-198/2014,

Treaties/ Others

Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1

Decision No 3052/95/EC of the European Parliament and of the Council; “Establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community” (13 December 1995) OJ L 321, 30.12.1995, p. 1–5

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