Thursday, 20 March 2008

EU TFEU: Quantitative import restrictions

Besides security, the main objective of European integration is prosperity for the citizens of the European Union.

The prohibition of quantitative restrictions between member states on imports is one of the fundamental principles of the internal market.

The drafters of the earlier treaties have been smart enough to include ‘all measures having equivalent effect’ and the Treaty of Lisbon to leave the single market provisions undisturbed.


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In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) is silent between point 45 on Customs cooperation and point 46 on Agriculture and fisheries (OJ 17.12.2007 C 306/52-53). The annexed Tables of equivalences however give us an indication that there is a whole chapter to look at, brief but of fundamental importance to the internal market (OJ 17.12.2007 C 306/207).

We notice that Article 28 of the Treaty establishing the European Community (TEC) first becomes Article 28 of the Treaty on the Functioning of the European Union (TFEU) in the Lisbon Treaty version (ToL), later to be renumbered Article 34 TFEU in the coming consolidated version.

We set the provision into its future context (from the Tables of equivalences) and present its contents (taken from the latest consolidated version of the current treaties, OJ 29.12.2006 C 321 E/52):

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 28 TFEU (ToL), renumbered Article 34 TFEU

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

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The European Convention proposed the following Article III-42 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):

Subsection 3
Prohibition of quantitative restrictions

Article III-42 Draft Constitution

Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.

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The IGC 2004 took over the draft text ‘verbatim’ as you see in Article III-153 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/65):

Subsection 3
Prohibition of quantitative restrictions

Article III-153 Constitution

Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.

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If we take a look at the following Articles of the current TEC and the proposed TFEU, we are able to see that they have separate provisions concerning quantitative restrictions on imports and on exports, whereas the draft Constitution and the Constitution shortened the text by merging the two.

A citizen of the European Union can only dream of the brevity of the Constitution of the United States of America, but shorter, sharper and clearer treaty texts would in general be an improvement.

In this case, however, the provisions under discussion are among the shortest, and despite their brevity they carry a lot of punch. In addition, they are much sinned against. Preserving the distinction between two different Articles makes it easier to track case law back in time and to deal with different measures where in depth study is called for.

It is therefore preferable to let the coin preserve its two sides, considering the fundamental importance of these distinct provisions for the working of the internal market.

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Clear quantitative restrictions in international trade are usually called quotas, in this case import quotas.

Import quotas are protective or protectionist measures, since they leave part of the demand to be filled by domestic suppliers (leading to a privileged position for them and conversely to higher prices and less choice for enterprises looking for components or raw materials as well as for consumers).

Creating national artificial bottlenecks on imports contradicts the basic ideas behind the internal market.

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‘What’s in a name? that which we call a rose
By any other name would smell as sweet.’

Or, as nasty, Shakespeare might have said, had he been into trade instead of young love and protectionism instead of flowers.

One of the main contributions of the drafters of the treaties is the appropriate and repeated use of the phrase ‘and all measures having equivalent effect’. Member states’ restrictive legislative acts or administrative practices do not escape (in the long run) despite creative labelling. Their effects count, not the label.

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Since the basic tenets of the internal market are left unchanged, they are barely noticeable if you read the research papers or the commentaries on the Lisbon Treaty. You just have to go to text books or case law, if you want to study the single market. (My intention is to look at the treaties as a whole, as they would stand when the Treaty of Lisbon has entered into force. At the present time, earlier posts cover most of the TEU and the beginning of the TFEU.)

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Some of the treaty provisions need clarifying (secondary) legislation to become effective. Others, like Article 28 (new 34) of the Lisbon Treaty TFEU are clear enough to have direct effect, automatic application. Only by having priority over national provisions does European Community law offer redress to EU firms and citizens.

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There are permissible prohibitions and restrictions on imports (and exports and goods in transit), but these will be dealt with another day, after we have looked at quantitative restrictions on exports.


Ralf Grahn