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European Union Law

Student's Name

Institutional Affiliation

Course Name and Number

Professor's Name

Due Date

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Introduction

The European Union (EU) is one of the largest and strongest economic and

political unions, with 27 member states from Europe.1 They are bound by the EU law,

which among other things, governs the trade among the countries in the union. The

trade laws have facilitated the free movement of goods and services after various fiscal

and non-fiscal barriers were eased. They have facilitated the creation of a common

market among the member states; the biggest characteristic is the common tariffs. The

Treaty on the Functioning of the European Union (TFEU) pillars govern the

implementation of this common market regulation,2 Articles 30 and 110 for the fiscal

barriers that include tariffs.3 In contrast, the non-fiscal barriers are governed by Articles

34 to 36 of the TFEU.4

Looking at the questions for this paper, they fall under the non-fiscal barriers, which are

nonmonetary. Their compatibility with the EU law and the TFEU will be based on the

Measures Equivalent to Quantitative Restrictions (MEQRs) especially based on Article

34, which states that the "qualitative restrictions on imports and all measures having

equivalent effect shall be prohibited between the member states."5

What are Goods?

To determine the compatibility of these cases, there is a need to determine the

definition of goods since (MEQRs) are on goods. In the Italian art case, Commission vs.

1
Horspool, Margot, and Matthew Humphreys, European Union Law (Oxford University Press, 2012).
2
Blanke, Hermann-Josef, and Stelio Mangiameli, eds. Treaty on the Functioning of the European Union: A
Commentary (Springer, 2021)
3
Article 30 of TFEU
4
Article 34-36 of TFEU
5
Article 34 of TFEU

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Italy of 1968 which defined what a good is.6 Good is any product with a monetary value

subject to commercial transactions. Germany's domestic fuel policies, the ban on

Spanish lamb in Romania, the beer retaliation by Spain, and the magazine importation

to Italy constitute goods.

a) Germany’s Domestic Fuel Requirement

The requirement that the domestic fuel suppliers 76% from German domestic

producers raises concerns about its compatibility with European Union law. It appears

to discriminate against foreign suppliers. Article 34 of TFEU looks at the fundamental

freedoms of free movement that prohibit quantitative restrictions and MEQRs. Given

that t is already established that the fuel is goods, there is a need to determine if it falls

under Article 34 or MEQR. Since Germany has explicitly stated the percentage

requirement, it makes up a quantitative restriction on fuel imports. It impedes the free

movement of goods as intended in the common market creation and non-discrimination,

according to Article 187 and 1148 of TFEU. Considering the case of Dassonville,9 the

restrictions can be considered a MEQR as the policies that present an indirect huddle to

the movement of goods among the member states.

Since it has been established that the restriction is a MEQR, it is necessary to

determine the type of MEQR as stated in Directive 7/50, which classifies them as

distinctly and indistinctly. Distinctly applicable MEQRs are on the imposition of

restrictions on imported goods. A distinctly applicable MEQR can be observed in Buy

6
Case 7/68 Commission vs Italy [1968]
7
Article 18
8
Article 114
9
Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837

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Irish Case,10 where the Irish government required that the Irish exclusively purchase

products made in Ireland. An indistinctly applicable MEQR restricts domestic and

foreign products with more pressure on imported goods. Demonstrated in the case of

Cassis de Dijon,11 where Germany restricted the sale of a spirit drink as it failed to reach

the required 25% alcohol content. It was harsh since the alcohol content requirement

was to be satisfied in France first, then Germany. About this question, the restrictions

are on imported petroleum products. The restrictions are only on the purchase of

domestic petroleum that encourages local purchases, as it is in the Buy Irish case.

These restrictions can therefore be, classified as distinctly applicable to MEQR.

Other considerations are from the derogations to the free movement of goods as

stated in Article 36 of TFEU,12 which justifies restrictions under reasons such as

morality, public health protection, plant and animal protection. However, they shall not

be used as arbitrary discrimination in disguise. Looking at the question, Article 36 can

be used to justify the fuel restrictions. Using the reason for the policy to protect the

domestic energy industry in case of a world fuel crisis can be legitimate. However, the

measure in Germany's policies can be contested because they disproportionately hinder

competition and restrict trade among the countries.13 In cases like Campus Oil,14 the

exceptions under Article 36 were justified as Ireland's 35% purchase of oil from the state

was proven to be a matter of public security to protect the state and its major source of

revenue. The German government needs to prove that the restrictions were

10
Case 248/81 Commission vs Ireland [1982]
11
Rewe-Zentral AG v Bundesmonopolverwaltung (Cassis de Dijon) (Case 120/78)
12
Article 36 of the TFEU
13
Blanke, Hermann-Josef, and Stelio Mangiameli, eds. Treaty on the Functioning of the European Union: A
Commentary (Springer, 2021).
14
Case 72/83 Campus Oil [1984] ECR 2727

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proportionate to the object of protection of the domestic fuel industry. Germany heavily

relies on its domestic energy industry to produce goods and services; therefore, the

restrictions can be justified because the government is protecting local companies that

rely on fuel for production from any eventualities in the global energy industry, thus

protecting the German economy.

b) Romania’s Ban on Spanish Lamb and the Spanish Ban on Romanian Beer

The banning of Spanish lamb in Romania followed by the Spanish government to

ban Romanian beer, are both an interruption of trade. This case can be classified as a

distinctly applicable MEQR as it involves banning products from a specific country. It

can also be argued to be a violation of Article 18 of TFEU,15 which prohibits

discrimination on the grounds of nationality. The case of Cassis de Dijon provided for

the principle of "mutual recognition" of standards among the EU member states. 16 Under

mutual recognition, when a product complies with the regulations of one member state,

the product cannot be prohibited for sale in the other member states unless it is under

the application of Article 36. Also, in the case Italy Trailers17 and Commission v Spain,18

the justification to sell in one state because the same good is allowed in another state is

made stronger as it was in the French and Latvia case, which allowed the sale of

sausages in France since they had already passed the safety checks in Latvia.

Both the goods are legally produced in the parent countries as Spanish lamb is

sold in the country and Romanian beer is allowed in Romania. Therefore, the principle

15
Article 18 of the TFEU
16
Rewe-Zentral AG v Bundesmonopolverwaltung (Cassis de Dijon) (Case 120/78)
17
Commission v Italy (2009) C-110/05
18
Case C- 704/19 Commission v Spain

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of mutual recognition allows the products to be legally allowed in each country's market.

The derogations in Article 36 can also not be used in this case. Both countries argue

based on public health protection. However, there is no justifiable evidence that the

products pose a public health and safety threat, as the scientific evidence has not been

settled. It is similar to the case which involved banning turkey imports from France

based on stopping the risk of Newcastle diseases. The ban was found to be

discriminatory as the threat of infection was not proven. This is also based on Article 36

of the TFEU. The derogations each state gives do not represent any proven threat to

the states; hence not valid.19

c) Seizure of Pornographic Magazines by Italy

This case raises questions on the compatibility of Italian policies regulating the

importation of obscene materials. In the first place, pornographic materials can be

legally traded within Italy under local restrictions; it, therefore, goes against the Italian

policies to seize these magazines. It infringes the principles of non-discrimination as

stated in Article 18,20 as it seems to target magazines from Holland, yet the same is

freely sold in Italy. It does not full fill the requirements stated in case Conegate ltd.21 It,

therefore, makes it a distinctly applied MEQR as it is a restriction based on nationality.

Also, the above-mentioned principle of mutual recognition can be applied to the case.

The magazines seem to be freely and legally produced and marketed in Holland, an EU

member state. Therefore, they are not required to comply with any Italian regulations.

Also, the derogation of public morality according to Article 36 cannot be upheld as Italy

19
Article 36 of the TFEU
20
Article 18 of the TFEU
21
Conegate Limited vs HM Customs and Excise c 121/85

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still allows the same material to circulate from its local producers. The effect of

pornographic materials from Italy can be considered the same as materials from

Holland. Hence it will be deemed discriminatory. Article 36 goes hand in hand with

Article 114,22 which requires harmonization of the laws. In the case of Gourmet

International,23 prohibiting the advertisement of domestic products is a hindrance since

local products do not go through the same restrictions. It is the same case as whether

products from the two countries are discriminately treated.

Conclusion

From the above cases, all the restrictions have proven to make trading difficult as

they infringe against the principles of free movement of common market goods, non-

discrimination, proportionality, and mutual recognition, and do not provide enough

evidence on the derogations.24 Like in the first case, German could prove on derogation

grounds that its actions were compatible with EU laws and that it was in the state's best

interest. The only point of clarity in these laws, especially for scientific evidence on the

virus testing of beer, should be clarity on the actions of member states when the

scientific community has not conclusively agreed upon the perceived danger to public

health. There also needs to be similar standards for carrying out these public health

tests to ensure the harmonization of laws as part of Article 114.

22
Article 114of the TFEU
23
Konsumentombudsmannen v Gourmet AB (2001) C-405/98
24
Horspool, Margot, and Matthew Humphreys, European Union Law (Oxford University Press, 2012)

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Bibliography

Books

Blanke, Hermann-Josef, and Stelio Mangiameli, eds. Treaty on the Functioning of the

European Union: A Commentary (Springer, 2021).

Horspool, Margot, and Matthew Humphreys, European Union Law (Oxford University

Press, 2012).

Articles

Article 114 TFEU

Article 110 TFEU

Article 34-35 TFEU

Article 30 TFEU

Article 36 TFEU

Article 18 TFEU

Cases

Case 7/68 Commission vs Italy [1968]

Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837

Case 248/81 Commission vs Ireland [1982]

Rewe-Zentral AG v Bundesmonopolverwaltung (Cassis de Dijon) (Case

120/78), EU:C:1979:42, [1979] ECR 649

Case 72/83 Campus Oil [1984] ECR 2727

Commission v Italy (2009) C-110/05

Case C- 704/19 Commission v Spain

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Konsumentombudsmannen v Gourmet AB (2001) C-405/98

Conegate Limited vs HM Customs and Excise C- 121/85