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

Article 36 provides:
“The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of i …

Scope

“The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”.

To be free from any arbitrary discrimination, the measure must be applied in the same way to domestic goods and those imported from other Member States. This is the case where, for reasons of public morality, national regulations prohibit all imports of goods where trade of such goods on the national territory concerned is unlawful . However, a national measure which requires a roadworthiness test for the purpose of registering an imported vehicle carrying a certificate of its conformity to the standards approved in the importing State and previously put on the road, does not, in fact, come from a concern for the protection of human health and life and constitutes arbitrary discrimination in trade between Member States if that testing is not required in the case of vehicles of national origin presented for registration in the same circumstances . Likewise, a national law which authorizes advertising in respect of certain national products, whilst advertising in respect of products having comparable characteristics but originating in other Member States is restricted or entirely prohibited, is not justified by concerns relating to the protection of public health .

The way the provision is structured has led the supervisory authorities to put in place two principles of interpretation. On the one hand, insofar as it constitutes an exception to a fundamental rule derived from the Treaty, Article 36 has been interpreted restrictively, and on the other, as the listed exceptions were not clear-cut and were themselves subject to limits, the European Court was progressively led to applying a proportionality test to them. 

Case 34/79 Regina v Henn and Darby [1979] ECR 3795, LawLex200500005800JBJ. See also Case 121/85 Conegate Limited v HM Customs & Excise [1986] ECR 1007, LawLex200900001517JBJ; Case 34/79 Regina v Henn and Darby [1979] ECR 3795, LawLex200500005800JBJ.

Case 50/85 Schloh v SPRL Auto contôle technique [1986] ECR 1855, LawLex200900002267JBJ; see also Case 8/74, Dassonville [1974] ECR 837, LawLex200500005388JBJ: requirement by a Member State of a certificate of authenticity which is less easily obtainable by importers of an authentic product which has been put into free circulation in a regular manner in another Member State than by importers of the same product coming directly from the country of origin.

Case 152/78 Commission v France [1980] ECR 2299, LawLex200900001571JBJ.

European Business Law

45. Scope

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

45. Scope

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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