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 37 TFEU has as its object to conciliate the possibility, for Member States, of maintaining certain monopolies of a commercial character as instruments to pursue objectives of public interest with the requirements of the establishment and functioning of the internal market. It covers the elimination of obstacles to the free movement of goods, except, however, for restrictive effects on trad …

Relation to other European rules

Article 37 TFEU has as its object to conciliate the possibility, for Member States, of maintaining certain monopolies of a commercial character as instruments to pursue objectives of public interest with the requirements of the establishment and functioning of the internal market. It covers the elimination of obstacles to the free movement of goods, except, however, for restrictive effects on trade which are inherent to the existence of commercial monopolies. The monopoly must be arranged in such a way as to exclude any discrimination between nationals of the Member States regarding the conditions under which goods are procured and marketed, so that trade in goods from other Member States is not put at a disadvantage, in law or in fact, as compared with trade in domestic goods and that competition between the economies of the Member States is not distorted . The holder of a monopoly in the sector of telecommunications terminal equipment must thus be able to offer the entire range of models available on the market, to inform customers about the state and operation of all the terminals and to guarantee their quality . 

Although the provisions relating to the existence and operation of a national monopoly of a commercial character are assessed in the light of Article 37 TFEU, the effect on intra-EU trade of the other provisions of domestic legislation which are separable from the operation of the monopoly, are assessed in the light of Article 34 TFEU . Therefore, domestic provisions relating to the import of alcoholic beverages in the territory of a Member State fall within Article 34 TFEU and not Article 37 TFEU where they concern neither the existence nor the operation of the monopoly of a commercial character on which has been conferred the exclusive right of retail sales of those beverages . However, the two texts may be cumulatively applied. A national provision prohibiting the distillation, for the purpose of manufacturing products reserved to a national commercial monopoly, of all imported raw materials where that prohibition does not apply to identical goods produced within the national territory , or that which reserves to a Member State the power to alter the price of manufactured tobacco determined by the manufacturers and importers where domestic products fall within a national monopoly  constitutes both a measure having equivalent effect within the meaning of Article 34 TFEU and a discrimination, within the meaning of Article 37 TFEU.

2) Charges having equivalent effect and internal taxation

Article 37 TFEU does not exclusively relate to the prohibition of quantitative restrictions: it also covers the abolition of customs duties and charges having equivalent effect . 

Even though Articles 110 and 37 TFEU are based on the principle of elimination of all discrimination in trade between Member States, an initial examination under the first provision should be preferred in order to assess the compatibility of a fiscal system that may exist independently of any connexion with a commercial monopoly, within the framework of legislation of a purely fiscal character . In effect, a favorable tax system that may exist outside any connexion with a commercial monopoly should be examined under the provisions of Article 110 TFEU due to its general character, rather than under Article 37 which is specific to national monopolies . However, the fact that taxation complies with Article 110 does not necessarily imply that it is valid under Article 37 . 

Placed in the chapter relating to the elimination of quantitative restrictions, Article 37 TFEU exclusively covers the free movement of goods. Therefore, a monopoly in the provision of services does not, in principle, come under that provision , unless it has an indirect influence on trade in goods between Member States by leading to discrimination against imported products as opposed products of domestic origin .

Articles 37 and 107 TFEU pursue the same objective which consists in preventing a Member State - through a public monopoly or the granting of aid - from distorting the conditions of competition or from creating discrimination against the production or trade of other Member States. Those provisions may be cumulatively applied since the specific provisions of Article 37 still apply even if the exercise by the public monopoly of its exclusive right is connected with the granting of aid in favor of producers coming under the monopoly. The operations of a State monopoly are therefore not exempted from the application of Article 37 by reason of the fact that they may at the same time be classified as State aid . 

The provisions relating to the common organization of agricultural markets prevail over those for the establishment of the internal market, and in particular Article 37 TFEU. They should therefore not be thwarted by describing as a “State monopoly” an agency vested with certain statutory powers .

Case C-438/02 Hanner [2005] ECR I-4551, LawLex200900000811JBJ.

Case C-202/88 France v Commission [1991] ECR I-1223, LawLex200500003928JBJ.

Case C-6/01 Anomar and others [2003] ECR I-8621, LawLex200900001065JBJ, monopoly in the operation of games of chance or gambling, which are by nature a provision of services; Case 155/73 Sacchi [1974] ECR 409, LawLex200500004036JBJ, on televised commercial advertising.

Case 30/87 Bodson v Pompes funèbres des régions libérées [1988] ECR 2479, LawLex200400002946JBJ, on concessions of funeral services; Case 271/81 Amélioration de l'élevage v Mialocq [1983] ECR 2057, LawLex200900001802JBJ and C-17/94 Criminal proceedings against Gervais and others [1995] ECR I-4353, LawLex200900000703JBJ, for a territorial monopoly to practise artificial insemination in favor of insemination centres.

Case 91/78 Hansen [1979] ECR 935, LawLex200900002017JBJ; Case 253/83 Kupferberg v Hauptzollamt Mainz [1985] ECR 157, LawLex200900001770JBJ.

Case 177/78 Pigs and Bacon Commission [1979] ECR 2161, LawLex200900001605JBJ.

Case C-189/95 Criminal proceedings against Franzén [1997] ECR I-5909, LawLex200900000764JBJ.

Case C-170/04 Rosengren and others [2007] ECR I-4071, LawLex200900000704JBJ.

Case 119/78 Peureux [1979] ECR 975, LawLex200900001506JBJ.

Case 90/82 Commission v France [1983] ECR 2011, LawLex200900002189JBJ.

Case 91/75 Hauptzollamt Göttingen v Miritz GmbH & Co. [1976] ECR 217, LawLex200900001981JBJ.

Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787, LawLex200900001557JBJ.

Case 86/78 Peureux [1979] ECR 897, LawLex200900002016JBJ; Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787, LawLex200900001557JBJ; Case 314/81 Procureur de la République v Waterkeyn [1982] ECR 4337, LawLex200900002177JBJ.

Case 45/75 Rewe-Zentrale v Hauptzollamt Landau-Pfalz [1976] ECR 181, LawLex200900001978JBJ.

European Business Law

70. Relation to other European rules

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70. Relation to other European rules

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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