Saturday, 22 March 2008

EU TFEU: Legitimate restrictions on imports and exports

The free movement of goods is a fundamental principle of the internal market of the European Community (European Union). There are, however, other societal values, which call for attention, and they can vary between the member states.

A balance has to be sought between these different values, leaving scope for national sensitivities, but preventing discriminatory use.

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Since the intergovernmental conference (IGC 2007) had nothing in particular to say about the contents of Article 30 of the Treaty establishing the European Community (TEC), we start by looking up the provision in the latest consolidation of the treaties OJ 29.12.2006 C 321 E/53:


Article 30 TEC

The provisions of Articles 28 and 29 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.

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In the Treaty of Lisbon (ToL) Article 30 TEC becomes Article 30 of the Treaty on the Functioning of the European Union (TFEU). In later consolidated versions the provision and the two Articles referred to are renumbered according to the Tables of equivalences referred to in the IGC 2007 Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/207). We indicate the Article numbers and the location of the provision:

Part Three Policies and internal actions of the Union

Title I The internal market

Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States

Article 30 TFEU (ToL), new numbering Article 36 TFEU

The provisions of Articles 28 [TFEU (ToL), new number Article 34 TFEU] and 29 [TFEU (ToL), renumbered Article 35 TFEU] 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.

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I routinely check my rendering against Klemens H. Fischer: Der Vertrag von Lissabon, the IIEA: Treaty on the Functioning of the European Union (Consolidated version) and the Statewatch Analysis by Steve Peers. If I find an anomaly, I check again.

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Because the draft Treaty establishing a Constitution for Europe had only one Article prohibiting quantitative restrictions on both imports and exports, the referral was different, but otherwise the European Convention took over the text of Article 30 TEC word for word in its Article III-43 (OJ 18.7.2003 C 169/34).

The same goes for Article III-154 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).

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The grounds for exceptions (derogations) from the free movement of goods may be easier to read if presented in the form of a list:

· Public morality

· Public policy

· Public security

· Protection of health

· Protection of national treasures

· Protection of industrial and commercial property

These are only possible grounds for prohibitions or restrictions on the free movement of goods by the member states.

In order to override the commercial interest of free flow of goods, the exceptions have to be justified on objective grounds. They have to be necessary to achieve the policy aim in question, and they have to be proportional, namely no more disruptive than needed to attain their objective.

The Court of Justice (‘of the European Union’, as it is to be known) is the final arbiter of when restrictive measures are legitimate and when they constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Derogations or exceptions are interpreted narrowly.

One example of a national measure on public morality grounds that would fail is a prohibition of imports of pornographic products, if domestic goods of the same kind were allowed.


Ralf Grahn