The market access test of article 34 tfeu by lynndon groff the european court of justice has, at times, utilized a market access test to determine whether a national measure has equivalent effect to a quantitative restriction meqr on imports within the meaning of article 34 of the treaty on the functioning of the. Consolidated version of the treaty on the functioning of the. Eu law free movement of goods article 34, 35 and 36. Free movement of goods outline answers to essay and problem questions. Pdf shortly before the disappearance of the european community, the.
Treaty on the functioning of the european union tfeu free movement of goods article 34 tfeu ex. Article 345 tfeu, formerly article 295 ec and, before that, article 222 eec, is an article that limits, but not prevents, the application of the tfeu treaty as a whole to the way in which rules of a member state deal with the right of ownership of undertakings. The tfeu includes enhancements to the social dimension of the european union. Treaty on the functioning of the european union eurofound. The eu competition rules on intellectual property licensing pdf. Dassonville, article 34, directly or indirectly, actually or potentially, mixed situations, rule of. Has direct effect both horizontal and vertical as it is a treaty article article 35 tfeu similar prohibition as art 34, on exports article 36 tfeu justifications for article 34 and 35 article 37 tfeu state monopolies must be compatible with free movement of goods. Dassonville cadmus eui research repository european. Pdf free movement of goods and their use what is the. Article 34 tfeu interpretation regulation of markets.
Total downloads of all papers by christopher townley. The european law blog aims to highlight, and comment on, current developments in eu case law and legislation. Firstly, it is necessary to assess the european court of justices general interpretation of the articles 34 and 36 tfeu. Serbia provides the commission an action plan for compliance with articles 34 36 tfeu, including milestones for the internal screening of domestic legislation and administrative practices, and for the introduction of mutual recognition clauses, and for the necessary subsequent amendments or changes. The fact that state discretion is constrained under the state aid regime, but upheld under articles 34 36 tfeu, corresponds from the perspective of input criteria to less and more legitimacy, respectively. Article 34 tfeu, article 36 tfeu, alands vindkraft, bot ag, case c20412, case c57312, cases c20412 through to c20812, certificate of origin, cjeu, coj, directive 200177, directive 200928, domestic regulatory autonomy, ecj, electricity, essent, eu, european court of justice, feedin, feedin tariffs, flemish region, free movement of. Finally, article 36 tfeu allows member states to apply rules prohibited under article 34 provided they are justified on the grounds of public morality, public policy, public security, protection of health and life of humans, animals or plants, protection of national treasures possessing artistic historic or archaeological value, or protection. Are indistinctly applicable equal burden rules caught by article 34 tfeu. Introduction the rule of reason is one of the crucial developments in european law, that affects the scope of application of article 34 of treaty on the functioning of the european union tfeu. Guide to the case law of the european court of justice on. Free movement of goods fact sheets on the european union. Learn vocabulary, terms, and more with flashcards, games, and other study tools.
The commission bases its analysis on the description of the facts and the situation in scotland as presented by the referring judge. Article 36 tfeu allows member states to take measures having an effect equivalent to quantitative. The provisions of articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security. As from 1 december 2009, the lisbon treaty significantly revised and renamed the treaty on the functioning of the european union. From status to impact, and the role of national legislation. This is the revised version from eurlex dated 01052019. The rule of reason is one of the crucial developments in european law, that affects the scope of application of article 34 of treaty on the functioning of the european union tfeu. Free movement of goods and their use what is the use of it. Pdf free movement of goods and their use what is the use of it. Nevertheless member states remain competent for setting certain conditions for the establishment of a pharmacy. Application of article 34 of treaty on the functioning of the european union tfeu 1732 words 7 pages. On article 34 and national rules restricting the use of lawfully marketed products. It was common ground that the minimum unit price constituted a quantitative restriction contrary to article 34 tfeu. And while the principle of subsidiarity embodies that when possible and reasonable, decision making power stays with the member states, the european union does have a mandate and obligation in the policy domain of public health.
This paper aims to analyze the historical development of competition law in the european union, the eu treaties, regulations and directives, which guarantee the protection of competition in the european community. Articles 34 and 35 can be used to strike down national legislation which. Tool for policing the border between legitimate and illegitimate national regulation article 36 tfeu ex 30 ec. Guidelines on the application o f article 1011 tfeu, oj 2004 c 10197. A separate chapter in the guide concerning article 56 tfeu is dedicated to the case law on directive 2006123ec on services in the internal market services directive. Commission interpretative communication on the application of article 296 of the treaty in the field of defence procurement. There is a concern that the effectiveness of competition rules would be at. If this view is correct then trailers has modified paragraph 17 of keck to include a market access test. The purpose of this contribution analyse the is to relationship between article 34 tfeu and national rules regulating when, where, how and by whom a lawfully. Free movement of goods in the eu universiteit leiden. A video lecture on articles 34, 35 and 36 of the tfeu looking at quantitative restrictions and meqrs in eu law.
Declaration on article 194 of the treaty on the functioning of the european union. The treaty on the functioning of the european union bartleby. The eu competition rules on intellectual property licensing contents 1. The safe harbour of the ttber and the threestage analysis 6 4. Formerly known as the ec treaty, the treaty of rome or the treaty establishing the european community. The scope of the test fluctuated wildly throughout the years and no one test was applied consistently. Other articles have also had their numbering changed.
The treaty of lisbon introduced an extension of locus standi for private claimants by amending article 2634 tfeu. Glossarytreaty on the functioning of the european union tfeu related contentone of the two main treaties that form the basis of eu law. Serbia provides the commission an action plan for compliance with articles 3436 tfeu, including milestones for the internal screening of domestic legislation and administrative practices, and for the introduction of mutual recognition clauses, and for the necessary subsequent amendments or changes. Declaration on article 218 of the treaty on the functioning of the european union concerning the negotiation and conclusion of international agreements by member states relating to the area of freedom, security and justice. This in turn reduces legal certainty for both member states and traders, and implies a significant risk of judicial overload for the court itself. The right to free movement of goods originating in member states, and of goods from third countries which are in free circulation in the member states, is one of the fundamental principles of the treaty article 28 tfeu. Consolidated version of the treaty on the functioning of. Antitrust supervision of the regulatory activities of public. The scope and application of eu law in this area is largely a result of the court of justice of the european unions activism. Treaty on european union and treaty on the functioning of. Intellectual property rights and eu competition law 1 2.
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states. The provisions of articles 30 to 34 inclusive shall not be an obstacle to prohibitions or restrictions in respect of importation, exportation or transit. Jan 29, 2014 although the exact scope of article 34 tfeu is now almost fully defined, it is clear that the method the court used to get to this position is flawed. Oxford university press online resource centre outline. Facilitating infringements of article 34 tfeu and the territorial nature of green electricity support schemes. Yesterday, the court decided to give horizontal effect to article 34 tfeu on the free movement of goods. If a measure is not discriminatory because it affects all traders equally then it surely follows that there is no market access problem. To date this series includes publications concerning article 49 tfeu et seq. Do indistinctly applicable equal burden rules fall insideoutside scope of article 34 tfeu given seemingly no less restrictive effect on imported good.
Critically discuss the interpretation of the prohibition in article 34 tfeu and its interpretation for the regulation of markets question the court of justice has adopted far too wide an interpretation of the prohibition in article 34 tfeu whilst not going far enough in its interpretation of that article to accommodate the right of member states to regulate their own markets and to pursue. In catherine barnards wellknown manual, we read that dassonville. For the purposes of this essay, article 34, its scope before and. May 19, 2015 think glocally, discriminate internally.
Healthcare governance within the european union is predominantly a competence of the individual member states. The treaty on the functioning of the european union tfeu came into force on 1 december 2009 following the ratification of the treaty of lisbon, which made amendments to the treaty on european union and the treaty establishing the european community tec. Treaty on the functioning of the european union tfeu free movement of goods article 34 tfeu ex article 28 tec. Article 36 of the eec treaty, however, provides important exceptions to the principle of free movement of goods as embodied in article 30. Efficient restrictions of trade in the eu law of the internal. Greaves quantitative restrictions art 28 ec treatyart 34 feu quantitative restrictions on imports and all measures having. Free movement of goods european commission european union. Articles 34 and 35 on the one hand, and article 36 on the other, seek to strike a balance between the impetus towards free trade and the acceptance that member states must restrict it in order to protect certain important domestic interests. Article 36 permits member states to advance justifications for obstacles to trade. What should however be noted is that the legal ambit of article 34 36 is to prevent any measures, whether discriminatory or otherwise, from undermining the free market and the rules contained in articles 2830 tfeu. Article 34 of the treaty on the functioning of the european union tfeu is an important instrument for the creation of a market characterized by the free.
Where appropriate it takes into consideration additional information it received in the framework of the notification procedure under directive 98 34. Consolidated versions of the treaty on european union and the treaty on the functioning of the european union. Article 34 tfeu forms the key prohibition behind the free movement of goods. Freedom of establishment and article 56 tfeu et seq. Act concerning the conditions of accession of the republic of croatia and the adjustments to the treaty on european union, the treaty on the functioning of the european union and the treaty establishing the european atomic energy community oj l 112, 24. Article 34 of the treaty on the functioning of the european union tfeu is an important instrument for the creation of a market characterized by the free circulation of goods. Although the exact scope of article 34 tfeu is now almost fully defined, it is clear that the method the court used to get to this position is flawed. For the direct effect of the free movement of goods provisions see inter alia case 2662 van gend en loos 1963 ecr 1, and case 7476, iannelli 1977 ecr 577. This has resulted in a very messy series of decisions.
The provisions of articles 34 and 35 shall not preclude prohibitions or restrictions on imports. It states that quantitative restrictions on imports and all measures having equivalent effect are prohibited between member states. Nov 06, 2012 flash card on the fundamental treaty right to free movement of goods tfeu articles. There are no timeline of changes available for treaties, instead, previous dated versions from eurlex as pdf from 1992 onwards can be accessed via the more resources menu.
Essentially, the keck decision drew a line between what it said were product rules, ie those relating to designation, form, size, weight, composition, presentation, labeling, packaging which would be prohibited under article 34 tfeu, and selling arrangements which were considered not to be caught by the ambit of the article. Are indistinctly applicable equal burden rules caught by. While such conditions must be transparent, nondiscriminatory and proportionate, member states may be entitled to require the fulfilment of certain. Treaty on the functioning of the european union eurlex. This article examines the substance, function and interaction of three key judicial devices developed by the court of justice in order to manage the scope of art 34 tfeu on the free movement of goods within the internal market. Despite the importance of the agreement concept under art. In order for a csa not to be caught by article 34 tfeu it must fall equally on all traders in the national territory and affect the same in law and in fact in other words it must not be discriminatory. The exhaustive effect or not of eu secondary law will have to be discussed, as will article 34 tfeu including consultation and commissioned research issues and of course proportionality, and indeed a1p1 article 1, first protocol echr. The tfeu is an amended and renamed version of the tec. Article 49 of the treaty on the functioning of the european union tfeu prohibits restrictions on the freedom of establishment of nationals of a member state in the territory of another member state, while article 56 prohibits restrictions on freedom to provide services within the union in respect of nationals of member states who are established in a member state other than that of the. Free movement of goods robert schutze european union law. Free study and revision resources for law students llb degree on eu law. Pdf the concept of agreement under article 101 tfeu.
This story falls neatly into three parts, each beginning with a seminal judgment. The maastricht treaty of 1992 removed the word economic from the treaty of romes official title and, in 2009, the treaty of lisbon renamed it the treaty on the functioning of the european union. Article 36 tfeu, which provides justifications for regulatory barriers, cannot be applied in. This mandate is provided through article 168 of the. Quantitative restrictions and scope of article 34 tfeu. It had been undisputed before the national court that the scottish legislation constituted an obstacle to intraunion trade within the meaning of. Article 34 tfeu qrs and meqrs shall be prohibited between ms. Pdf the free movement of goods in the european union and. The rule therefore breaches article 34 and must be justified by article 36 or a mandatory requirement 2 the total ban is a csa, and even though is nondiscriminatory, is subject to a further market access test. Bot also reminds us of the unclear position of environmental exceptions under article 36 tfeu and the rule of reason. Without prejudice to article 4 of the treaty on european union or to articles 93, 106 and 107 of this treaty, and given the place occupied by services of general economic interest in the shared values of the union as well as their role in promoting social and territorial cohesion, the union and the member states, each within their respective. Importantly, the field of application of article 34 tfeu is limited by the keck jurisprudence, which states that. Treaty on the functioning of the european union tfeu. Pdf free movement of goods and their use what is the use.
For good measure, this article will also consider the principles governing justification under article 36 tfeu article 30 ec. The provision contains a new third variant for actions against regulatory acts which do not entail implementing measures. Regulatory acts within article 2634 tfeua dissonant. Without prejudice to article 4 of the treaty on european union or to articles 93, 106 and 107 of this treaty, and given the place occupied by services of general economic interest in the shared values of the union as well as their role in promoting social and territorial cohesion, the union and the. Greaves article 36 tfeu the provisions of articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified. Without prejudice to article 4 of the treaty on european union or to articles 93, 106 and 107 of this treaty, and given the. In line with this approach, the scotch whisky association claimed that the minimum unit price was incompatible with article 34 tfeu and could not be, or was not, justified under article 36. The legitimacy of this twofolded outcome is analysed from the perspective of input and output criteria. The article 36 tfeu derogations conclusion the provisions of articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security. Articles 26 and 2837 of the treaty on the functioning of the european union tfeu. Principle of loyalty and articles 101 and 102 tfeu regulatory activities of eu member states, which do not fall within the scope of articles 101 and 102 tfeu, may also adversely affect the trade on the eu internal market. State discretion, renewable electricity schemes, and the internal market in the context of articles 3436 tfeu and state aid rules.
The provisions on the free movement of goods ex articles 2830 ec have remained unchanged, but received a new numbering as articles 34 36 tfeu. The prohibition of discriminatory taxation, abolition of customs duties and removal of other administrative rules and barriers which hinder the free movement of goods have been tackled by articles 34 and 35 of the treaty on the functioning of the european union tfeu. The present guide will use this new numbering of the tfeu, also when. Articles 3436 tfeu nonfiscal barriers ms are bound by a34 but also ms will be held liable where they have failed to stop individuals from breaching rules commission v france spanish strawberries french farmers sabotaged spanish strawberries.
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