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

Independently of its coexistence with the other fundamental freedoms (see for the freedom to provide services No 1.15; for the freedom of establishment, No 1.16), the free movement of goods must be reconciled with certain specific provisions of the Treaty on the Functioning of the European Union. The general scope of a given rule may establish a hierarchy and result in the primacy of one provision …

Relation to other Treaty provisions

Independently of its coexistence with the other fundamental freedoms (see for the freedom to provide services No 1.15; for the freedom of establishment, No 1.16), the free movement of goods must be reconciled with certain specific provisions of the Treaty on the Functioning of the European Union. The general scope of a given rule may establish a hierarchy and result in the primacy of one provision over another. A concurrent application may in other cases be useful to pursue the objectives of the Treaty.

1) General principle of non-discrimination

The general principle of non-discrimination on grounds of nationality (Art. 18 TFEU) is designed to be applied in an autonomous manner only in situations governed by EU law for which there is no specific non-discrimination rule . However, the general scope of Article 18 TFEU may prevail on the specific provisions of Articles 34, 36, 56 and 62 TFEU, where the measure at issue affects trade of goods and services without distinction .

Article 34 TFEU covers in general all measures restricting imports which are not already specifically covered by other provisions of the Treaty. Thus, barriers of a fiscal nature are assessed only by reference to Article 110 TFEU : one and the same tax cannot be both a measure having an equivalent effect to a quantitative restriction on imports and internal taxation . 

3) State aid/Undertakings vested with a service of general economic interest

The rules on State aid and those on the free movement of goods may be concurrently applied since those provisions pursue the common objective of ensuring the free movement of goods under normal conditions of competition . Although State aid does not as such fall within Article 34 TFEU, its terms may be assessed in the light of that provision where, when analyzing the aid system, it is possible to isolate conditions or factors - although part of that system - which may be regarded as not necessary for the attainment of its object or for its proper functioning . By contrast, rules on the free movement of goods must be set aside where they obstruct the performance, in law or in fact, of the particular tasks assigned to an undertaking entrusted with services of general economic interest even if its survival is not threatened . Article 106(2) TFEU may thus be relied on to justify the grant of exclusive rights which are contrary to Article 37 TFEU by a Member State to an undertaking entrusted with the operation of services of general economic interest, where the performance of the particular tasks assigned to it can be achieved only through the grant of such rights and provided that the development of intra-EU trade is not affected . 

Under Article 4(3) TFEU, it is the Member States' responsibility to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Union. A Member State must therefore take all measures sufficient to ensure the compliance with the free movement of goods . Its failure is interpreted as a violation of its obligation of loyal cooperation . Although the Member States enjoy a margin of discretion in determining what measures are most appropriate to eliminate identified barriers to imports, the Court of Justice may check the sufficient and proportionate nature of the measures taken .

Case C-20/92 Hubbard v Hamburger [1993] ECR I-3777, LawLex200900002098JBJ.

Case C-323/95 Hayes v Kronenberger [1997] ECR I-1711, LawLex200900000277JBJ: rules of civil procedure; See also Case C-92/92 Collins and Patricia Im- und Export v Imtrat and EMI Electrola [1993] ECR I-5145, LawLex200900000312JBJ; Case C-43/95 Data Delecta Aktiebolag and Forsberg [1996] ECR I-4661, LawLex200900000789JBJ; Case C-274/96 Bickel and Franz [1998] ECR I-7637, LawLex200900001367JBJ.

Case C-265/95 Case C-265/95 Commission v France [1997] ECR I-6959, LawLex200900001333JBJ: for actions by private individuals restricting the free movement of fruits and vegetables where the Court of Justice considered that the threat of serious disruption to public order did not justify non-intervention by the police.

Case 252/86 Bergandi v Directeur général des impôts [1988] ECR 1343, LawLex200900001768JBJ; Case 32/80 Kortmann [1981] ECR 251, LawLex200900002042JBJ.

Case 27/67 Fink-Frucht GmbH v Hauptzollamt München-Landsbergerstrasse [1968] ECR 327, LawLex200900001797JBJ.

Case 249/81 Commission v Ireland [1982] ECR 4005, LawLex200900001733JBJ; Case 103/84 Commission v Italy [1986] ECR 1759, LawLex200900001439JBJ; See also Case C-221/06 Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten [2007] ECR I-9643, LawLex200900001270JBJ: exemption from internal taxation, within the meaning of Article 110 TFEU, reserved to certain domestic products, to the exclusion of imported products.

Case 74/76 Ianelli v Meroni [1977] ECR 557, LawLex200500005392JBJ: State aid in the form of subsidies enabling national publishers to obtain at reduced prices only newsprint which is produced by national paper-mills.

Reversal of previous case law: Case C-159/94 Commission v France [1997] ECR I-5815, LawLex200900002219JBJ; Case C-158/94 Commission v Italy [1997] ECR I-5789, LawLex200900000624JBJ; Compare, on the position of the Court before 1997: Case 72/83 Campus Oil [1984] ECR 2727, LawLex200900002208JBJ.

Case C-159/94 Commission v France [1997] ECR I-5815, LawLex200900002219JBJ.

Case C-112/00 Schmidberger [2003] ECR I-5659, LawLex200900000377JBJ, which specifies that this obligation applies both to acts affecting the flow of imports or exports and those affecting merely the transit of goods.

Case C-265/95 Case C-265/95 Commission v France [1997] ECR I-6959, LawLex200900001333JBJ.

European Business Law

21. Relation to other Treaty provisions

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21. Relation to other Treaty provisions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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