Question one
The purpose of Article 34 of the Treaty on the functioning of the European Union is to prohibit quantitative restrictions imposed by member states on imports. Other regulations similar to the quantitative restrictions are also prohibited by this article. This article is particularly important because it is one of the most important instruments required in the creation and enhancement of a market where there is free flow of goods. Free trade which involves free circulation of goods in member states is a fundamental principle of Article 28 of the Treaty on the Functioning of the European Union. This is in line with the purpose of the European Union which upon its creation purposed to promote and enhance the economic development among the member states. Trade is one way in which the economy in the region is boosted. As such, it is important to regulate the trading activities in the region more so how the countries apply measures and restriction in respect of imports and exports. Additionally, Article 34, 35 read together with article 36 of the TFEU purposes to attain a balance between the need to impose restrictions on imports and exports and the need not to have such restrictions. Considerably, this article acknowledges the importance of free trade in the European Union block and the effect on free trade on a member state that does not have restrictions imposed. Article 36 provides justification grounds which a member state which has imposed restrictions might rely on when confronted with implications of sabotaging the free trade in the region. It also implies that some restrictions may take the form of lawful trade barriers that affect the intended purpose of having free trade in the region. The Court of Justice of European Union defined quantitative restrictions in the Geddo[1] case as measures which either partially or totally impose restrictions or restraints to imports and exports or even on goods in transit. A restraint imposed by the member state may either be direct, indirect, potentially or actually capable of hindering free trade in the region. This position was laid out by the Court of Justice in the Procureur case[2] . Quantitative restrictions are justifiable under Article 30 of the EC treaty. Article 34 of the TFEU has a direct effect on European Union member states. Consequently the Court of Justice established in the case of Commission v France[3] that member states are liable for the actions of individuals who impose unjustifiable restrictions thus affecting the flow of free trade in the region. Treaty derogation is basically a provision provided in the European Union legislation that allows member states to apply all or part of legal measures differently. The CJEU in the Corsica case[4] this case dealt with the application of Article 59 of the TFEU where restrictions on freedom to provide services to the whole community in general were prohibited. The court stated that the article may be interpreted differently where the prohibition of cold does not fall within the scope of article 59. Mandatory requirements are provided in Article36 and are as follows, the restrictions must be based on the following grounds for justification; morality of the public, the security of the public in general, the health of animals and plants, policy of the public, protection of both commercial and industrial property and protection of various national features. The Court of Justice stated in Commision v Denmark[5] that mandatory requirements are only applicable to indistinctly applicable rules. Indistinctly applicable rules are rules that apply to both imported and domestic goods in the same manner or rather, equally without distinction.
Question two
The landmark case Procureur case established quantitative restrictions and gave provisions of which acts amount to quantitative restrictions and what acts do not. It stated that partial or total imposition of restrictions either directly or indirectly amounts to quantitative restrictions. Similarly, the Geddo[6]case also tackles the concept of quantitative restrictions. In the given case, free trade was interfered with since the goods belonging to the liquor company in transit were affected after the French Authorities closed the A36 motorway. This amounted to a quantitative restriction in light of the definition given by the Court of Justice in matters related to such restrictions. From the fact pattern the A36 motorway was closed because of the demonstrations from demonstrators opposing systemic racism. Clearly, this was an unexpected event as the French government had not intended to close the motorway to prohibit the goods in transit consequently prohibiting free trade in the region. The French government allowed the citizens to exercise their right guaranteed under the European Union law. As such, the act of the French government in closing the motorway does not amount to a discriminatory ground. As it had been earlier stated in this paper, the Court of Justice in Commission v France had stated that states will be held liable for actions of individuals who impose restrictions that affect free trade. In the given case, the French government should not be held accountable for the actions of her citizens because demonstrations are justifiable grounds. Article 36 provides grounds that a member state might rely on in justifying the restriction imposed. The justifiable ground that could be applicable in the present case is public policy and public security. The police are a government agency closed the motorway to ensure the protection of the demonstrators who are French citizens. This is therefore an absolute justifiable ground for the imposition of the restriction. The right to demonstrate has been outlined in Article 12 of the European Union Agency for fundamental rights.[7]
Question three
The Court of Justice in Commission v France[8] stated that a member state was liable for breach of Article 267 sub article 3 of the TFEU. This was a somewhat new position introduced by the judges as such a determination had not been made earlier in cases that involved breach of the states obligation in the enhancement and promotion of free trade in the region. From this case, it is evident that member states have a positive obligation to enhance and promote free trade in the economic block. The court in outlining this ground referred to one of its previous decision in the case of Commission v Italy[9] that a member state was liable for the action of its institutions including the constitutionally independent institutions which impose unjustifiable restrictions. Therefore, member states breach Article 34 when they fail to take positive measures or obligations to promote free trade in the region. Additionally the Court of Justice in Schmidberger v Austria[10] in this case, the court held that Austria’s failure to ban demonstrations amounted to violated of Article 34. This is because states a positive obligation to promote free trade. The court also indicated that the demonstrations were justified since they involved the guaranteed right of demonstrators to freely participate in demonstrations. Therefore, in every democratic society, freedom of expression and association are fundamental features or pillars.
Question four
The general principles of the European Union include equality before the law, proportionality, fundamental rights and freedoms and lastly, subsidiarity. The protection of fundamental human rights in the European Union is inspired by several factors. These include the respect for human dignity, the respect for human rights, democracy as well as the rule of law. The purpose for the formation of this charter was to consolidate broad categories of rights afforded to the citizens of the member states. One of the principles the court of Justice has applied is that of striking down legislation that contravenes the charter. While applying the general principles of the European Union, the Court of Justice is guided by the above listed inspirations. In interpreting the relevant law provisions, the judges must ensure that their decisions are founded on equality, democracy, human rights and the rule of law. Regarding the case in point, French government’s claims that their restrictions are justifiable based on the protection of fundamental rights, they are correct. As it has earlier been indicated the fundamental rights in question include the right to freedom of association and freedom of speech.
Question five
The Court of Justice ruled in Schmidberger v Austria[11] that mandatory requirements could only be restricted if they were in fact, corresponding with the objectives of the fundamental principles and general interest. The test that was applied to arrive at this determination was that the restriction should be acceptable. Also, it should be proportionate and the interference caused must be acceptable. The principle of proportionality usually regulates the limits to which what extent the European Union may exercise its powers. Article 5 of TEU enshrines the principle of proportionality.[12] The principle of proportionality in other words means that the level of power exercised by the European Union must be limited to only what is necessary and should not go over and above the objective of the treaty. In relation to the power exercised by the French government when it closed A36 motorway, it acted above it powers or above proportionate means. Closing the road was not the least remedy that the government would have applied but it applied it nonetheless.
Question 6
Article 34 has been very clear in its wording in relation to free movement of goods. It states that quantitative restrictions and other forms of restrictions similar to quantitative restrictions are expressly prohibited among member states. The aim of this provision is to promote free trade in the region. Additionally, it helps it creating uniformity and fairness among states. This occurs in several ways. One of such ways is that when states are guided by a legislation which out rightly prohibits certain conduct, the conduct will be shunned away by other member states. Free trade is a very important aspect that enhances economic development. It not only affects one state but majority if not all states members to the European Union. A state may participate in trade in the region in different forms. The state can import goods, export them or it can do both. Therefore, there has to be regulations put in place whose aim is to regulate the free trade. The European Union Agency for Fundamental rights perfectly helps achieve this aim through its provisions. In the case at hand, Germany has introduced quantitative restrictions and in relation affects the Liquor Company’s business. Article 36 stipulates that some restrictions are justifiable while others are not. What needs to be considered is the aim or the nature of the restriction put in place. Further, fundamental principles must be looked into to determine whether Germany’s restrictions were justifiable. According to Germany, the reason why they introduced a ban on alcoholic drinks is to protect public health as well as prevent the spread of alcoholic drinks which have been diluted. The government cited that the diluted alcoholic drinks had the effect of causing tolerance on the German users which was an aspect the government sought to curb. The liquor Company can challenge Germany on its decision to prohibit the sale of alcoholic drinks in the state. Based on Articles 34-36 of the EUFR, Germany’s claims have no justification and the court should therefore, do away with the restrictions. The restrictions imposed by states must be reasonable and should not prohibit free trade unjustifiably.
Question 7
The provided basis that Germany can rely on in justifying its imposition of a restriction on minimum alcohol content is on public health. Public health is one of the justification grounds that have been listed in Article 36 of the EUFR. Public refers to the health of the whole population in general. The European Union has set up various works solely for the promotion and protection of better health among citizens of the member states. Article 168 of EUFR has set out guidelines and the policies that should be adopted for the promotion of health in the region. These policies include the prevention of diseases and health threats, promoting research on health and healthcare and lastly, improving the health of the public. These are the relevant grounds which Germany might rely on when establishing that despite having introduced restrictions, they were justifiable and necessary. They must also establish that they used proportionate limitation of power such that there was no other better way to promote public health other than through the imposition of the restriction on minimum alcohol content in question.
Question 8
Whether German legislation can take precedence over provision of the European Union law, the Court of Justice has made it clear that between European Union law and national legislation, European Union law takes precedence. Where a national legislation is contrary to the European Union law, the national courts should proceed to apply European Union law over the contravening national legislation. All members of the European Union are bound by the European Union law. Advantages enjoyed by member states include political, legal, and economic benefits[13]. The economic benefits enjoyed include, the boost of the block’s GDP, removal of non-tariffs in the region which has led to the reduction of the costs and prices of items, and consumers can easily afford the products and the creation of the social security fund in the Union. Aside from economic benefits, citizens of the member states can freely move from one country to the other. This movement of people and labor enables the creation of a free economy.
Bibliography
Statutes
European Union Agency for Fundamental Rights, 2007.
Treaty of European Union, 2012.
Case law
Commission v Denmark (1986) ECR 833, 12.
Commission v France (1997) C-265/95.
Commission v Italy (2009) C-110/05.
Corsica Ferries Italia v Corpo dei Piloti del Genova (1994) ECR 1-1783.
Gedde v Ente Nazionale Risi (1973) ECR 865.
Procureur du Roi v Benoit and Gustavae Dassonville (1974).
Journal/articles
Tejvan Pettinger, ‘Benefits of the European Union’ (2016) <https://econ.economicshelp.org/2007/03/benefits-of-european-union.html> accessed on January 8, 2021.
[1] Gedde v Ente Nazionale Risi (1973) ECR 865.
[2] Procureur du Roi v Benoit and Gustavae Dassonville (1974).
[3] Commission v France (1997) C-265/95.
[4] Corsica Ferries Italia v Corpo dei Piloti del Genova (1994) ECR 1-1783.
[5] Commission v Denmark (1986) ECR 833, 12.
[6] Gedde v Ente Nazionale Risi (1973) ECR 865.
[7] European Union Agency for Fundamental Rights, 2007.
[8] n, 3.
[9] Commission v Italy (2009) C-110/05.
[10] Schmidberger v Austria (2003) C-112/00.
[11] Ibid.
[12] Treaty of European Union, 2012.
[13] Tejvan Pettinger, ‘Benefits of the European Union’ (2016) <https://econ.economicshelp.org/2007/03/benefits-of-european-union.html> accessed on January 8, 2021.
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