European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The principle of free movement involves removing all national obstacles to the free movement of goods within the internal market. The applicability of Articles 34 to 36 TFEU is however dependent on the level of European harmonization. Certain obstacles are removed thanks to European harmonization, which makes it possible to prevent technical restrictions on trade before any litigation. In all case …

EU harmonization

The principle of free movement involves removing all national obstacles to the free movement of goods within the internal market. The applicability of Articles 34 to 36 TFEU is however dependent on the level of European harmonization. Certain obstacles are removed thanks to European harmonization, which makes it possible to prevent technical restrictions on trade before any litigation. In all cases which are neither governed nor defined by harmonization measures, Articles 34 to 36 TFEU retain their authority and are used to fill in the gaps not filled by harmonization. The principle of mutual recognition thus plays an important role as, in all non-harmonized sectors, it obliges each Member State to accept goods lawfully marketed in another Member State on its territory. 

In the absence of common or harmonized rules, it is for the Member States to regulate all matters relating to the characteristics of composition, making and marketing of products on their own territory, provided that they do not thereby discriminate against imported products or hinder the importation of products from other Member States . However, in the absence of maximum harmonization,  Member States may prescribe the standards which the products must satisfy in their respective territory but their national provisions cannot be exempt from the application of Articles 34 to 36 .

Where a technical directive establishes full harmonization, the Member States are obliged to accept the placement on the national market of a product imported from another Member State where it meets the conditions referred to in the European provisions , without imposing other conditions . Likewise, the restrictions on imports allowed under Article 36 TFEU cannot be applied where EU directives provide for harmonization of the measures necessary to achieve the specific objective that such article pursues . 

Furthermore, where an EU directive implementing complete harmonization defines the measures to be taken by the Member States for the protection of imperative requirements of general interest or under exceptions provided for in Article 36 TFEU, those measures must observe the principle of proportionality . There can also be a distributive application of the European provisions to assess the compliance of national rules. Thus, the ban on internet sales is governed by Directive No 2000/31 of 8 June 2000, whereas the supply conditions are subject to Article 34 TFEU . Likewise, sports goods which enable the functioning of certain organs in the human body to be measured without any medical use, not conceived by their manufacturer to be used for medical purposes, are not subject to certification as a medical device pursuant to Directive No 93/42 concerning medical devices, insofar as, in this area, the protection of patients' health and the free movement of goods must be reconciled .

If, after the adoption of a harmonization measure, a Member State deems it necessary (i) to maintain national provisions on grounds of major needs referred to in Article 36 TFEU, or relating to the protection of the environment or the working environment or (ii) to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a specific problem arising after the adoption of the harmonization measure, Article 114 TFEU allows it to notify those measures to the Commission as well as the grounds for maintaining or introducing them . The Commission must hand down its decision within six months of the notification. Before approving or rejecting the national provisions in question, it verifies whether or not they are means of arbitrary discrimination or a disguised restriction and whether or not they constitute an obstacle to the functioning of the internal market. In the absence of a decision, the national provisions are deemed to have been approved. However, the notification by a Member State in accordance with Article 114 paragraphs 4 - 9, seeking confirmation of the provisions of national law derogating from a directive does not affect the direct effect of that directive, even though the Commission has failed to react to such a notification . 

A Member State also retains the possibility to take provisional measures for one or more of the non-economic reasons referred to in Article 36 TFEU subject to a EU control procedure where the harmonization measures include a safeguard clause (Art. 114(10) TFEU).

Lastly, the European court may allow Member States to adopt or maintain provisions that are aimed at ensuring greater protection .

Case C-17/93 Criminal proceedings against Van der Veldt [1994] ECR I-3537, LawLex200900000701JBJ.

Case 130/80 Kelderman [1981] ECR 527, LawLex200900001533JBJ: the making and marketing of bread and other bakery products.

Case C-319/97 Kortas [1999] ECR I-3143, LawLex200700001898JBJ.

Such as a provision fully banning the canvassing at home in relation to the sale of foreign-language teaching material from another Member State although the Directive of 20 December 1985 on the protection of consumers in contracts negotiated outside commercial establishments only provides for the obligation to grant a right to terminate the contract concluded at home: Case 382/87 Buet and others v Ministère public [1989] ECR 1235, LawLex201100000335JBJ.

Case C-121/00 Hahn [2002] ECR I-9193, LawLex200900000412JBJ; See also, for an example of refusal of application of Articles 30 and 36 TFEU where there is a EU law provision which regulates the question of shipments of waste in order to ensure the protection of the environment in a harmonized manner: Case C-324/99 DaimlerChrysler [2001] ECR I-9897, LawLex200900000295JBJ.

Case C-83/92 Pierrel and others v Ministero della Sanità [1993] ECR I-6419, LawLex200900001185JBJ: Directive on proprietary medicinal products.

Case C-323/93 Centre d'insémination de la Crespelle / Coopérative de la Mayenne [1994] ECR I-5077, LawLex200400002883JBJ: domestic rules which require economic operators who import semen from a Member State to deliver to an appropriate insemination or production centre cannot be justified by the need to improve bovine stock genetically insofar as those matters have been fully harmonized at EU level.

Case 5/77 Tedeschi / Denkavit [1977] ECR 1555, LawLex200500006881JBJ; Case C-5/94 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) [1996] ECR I-2553, LawLex200900000989JBJ; Case C-112/97 Commission v Italy [1999] ECR I-1821, LawLex200700001790JBJ.

Case C-77/97 Unilever [1999] ECR I-431, LawLex200700001826JBJ.

Case C-108/09 Ker-Optika [2010] ECR I-12213, LawLex201100000293JBJ.

Case C-219/11 Brain Products GmbH v BioSemi VOF, Judgment of 22 November 2012, LawLex201200002404JBJ.

For an example of application of Article 114 TFEU, see case C-512/99 Germany v Commission [2003] ECR I-845, LawLex200900001019JBJ, which underlines that the reasons for the adoption must include new scientific evidence justifying the measures.

European Business Law

19. EU harmonization

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Les décisions de justice citées dans ce paragraphe :

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19. EU harmonization

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise