European Union law prohibits financial and non-financial barriers to free movement of goods. The last posts referred to financial barriers and the applicable law (arts 28-30 TFEU) in relation to the prohibition of customs duties and charges having equivalent effect (CEEs); and art 110 TFEU and the prohibition of discriminatory internal taxation. Today, the post introduces non-financial barriers to free movement of goods.
In very simple terms, the applicable law includes arts. 34-36 TFEU and relevant case law (European Court of Justice).
Art 34 TFEU: prohibits:
1. quantitative restrictions on imports (QRs)
2. measures having equivalent effect to quantitative restrictions (MEQRs).
Art 35 TFEU: same as art. 34 TFEU, but for exports.
Exceptions to this principle:
1. QRs and MEQRS may be justified; that is, may not be unlawful, if fall within the derogations listed in art. 36 TFEU.
2. Certain indistinctly applicable MEQRs (but NOT QRs or distinctly applicable MEQRs) may be justified by case law rule (Cassis Rule of Reason/Mandatory Requirements).
3. Certain selling arrangements (prima facie = MEQRs) are excluded from art. 34 TFEU by case law rule (Keck v Mithouard).
As this series is centred on TERRITORIAL DISPUTES, the post now presents in very basic terms the above. For a more in depth understanding, please refer to European Union law bibliography.
Quantitative Restrictions (QRs): defined by case law (Geddo Case 2/73). National measures imposing numerical limit (for example, bans, quotas) are prohibited unless they can be justified under art. 36 TFEU.
Measures having equivalent effect to quantitative restrictions (MEQRs): they have a broad concept that includes rules on product packaging, content, shape, labelling, etc. that may hinder inter-state trade. MEQRs are divided into two types (not covered on this post).
Derogations (art. 36 TFEU): the prohibitions or restrictions on imports and exports can be justified on certain grounds (for example, public morality, public policy, public security, protection of health). Relevant case law Cassis de Dijon Case 120/78 and Keck v Mithouard Case C-297 7 296/91.
The post tomorrow will finish our presentation of European Union law relevant to the case of Northern Ireland. Thereafter, from Monday the posts centre the analysis on Northern Ireland; and how Brexit may affect positively their legal and political status.
Jorge Emilio Núñez
19th July 2018