DISCUSSION POST. Derogations to the Prohibitions in Article 34 and 35 of the TFEU Articles 34 and 35 of the TFEU contain prohibitions that help to protect the single market among the EU member states1. The single market is seen as a source of prosperity for EU member nations as it is a chance for the member states to sell their products all over the EU without restrictions2. This benefits them in that there is intense competition, which drives innovation. Members are able to access high quality goods and services at a fair price3. The prohibitions stated in the articles above act to limit the sovereignty of member states. This is because individual states cannot enact policies or laws that would quantitatively restrict the free movement of goods within the EU member states under these articles4. In addition, the prohibitions also serve to limit measures by individual states that may have an equivalent effect to quantitative restrictions. Article 36 of the TFEU lists the justifications that can be put forth by nations to allow them to derogate from the prohibitions in the previous articles mentioned5. The grounds for derogation mentioned in article 36 includes on the grounds of public morality, public policy, public security, when protecting the health and life of individuals, when protecting national treasures, and when protecting important archaeological, industrial and commercial property6. The application of these derogations is constrained by the fact that they cannot be extended to cover any other grounds not covered by article 36. The ECJ also when determining whether the grounds for derogation cited can hold, it ensures that the grounds involved do not promote arbitrary discrimination or covert discrimination of imported goods in a country. The measures must also be applied objectivity such that they do not promote protectionist measures in the country invoking them7. The proportionality tests are also used when determining whether a measure derogating from the provisions of article 36 will be allowed to remain. Under this test, the court seeks to determine whether the measure being enacted is necessary. This will include establishing that there is no other measure that can be put in place to achieve the same objective as the measure being fronted8. Therefore, in case there are other measures that can help a state achieve the same objective while at the same time hampering trade less than the measure in question, the state will be compelled to adopt that measure with less hindering effects. In case C-249/07, for instance, the court ruled that the nation state lacked objectivity as the measure pursued was more restrictive. A member state is required to show that pursuing the alternative less restrictive measure may have more detrimental effects to some of its other interests as a defense9. In the Cassis de Dijon case, there are some mandatory requirements that were coined, which served as some of the individual state interests that must be protected. These mandatory requirements include the need to conduct fiscal supervision, the need to protect public health and the need to protect consumer interests10. States are allowed to deviate from the prohibitions of article 34 on the grounds of the interests named above. This list is not exhaustive as some mandatory requirements were added to the list later on. It is however important to note that these mandatory requirements apply when justifying indistinctly applicable rules only. The only problem I may have noticed is the fact that the derogations listed may be insufficient in covering more contemporary issues as trade gets more complex and more issues emerge concerning the relationships of the EU member states11. _____________________________________________________________________ 1 Cuyvers, A. (2017). Free Movement of Goods in the EU. 2 Connor, T. (2010). Market Access or Bust? Positioning the Principle Within the Jurisprudence of Goods, Persons, Services, and Capital. German Law Journal, 13(6), 78. 3 European Union. (2018). Free Movement of Goods. Brussels: European Union. 4 European Parliament. (2015). A deeper and fairer Single Market New opportunities for business and people. Brussels: European Parliament. 5 Torino, R. (2017). Introduction to European Union Internal Market Law. Roma: Romatrepass. 6 Ibid 7 European Commission: Enterprise and Industry. (2013). Free Movement of Goods: Guide to the Application of Treaty Provisions Governing the Free Movement of Goods. Brussels: European Commission. 8 European Commission. (2015). Promoting the Internal Market and Economic Growth. Brussels: European Union. 9 European Commission: Enterprise and Industry. (2013). Free Movement of Goods: Guide to the Application of Treaty Provisions Governing the Free Movement of Goods. Brussels: European Commission. 10 European Commission. (2017). A deeper Fairer Single Market. European Commission. 11 European Commission: Enterprise and Industry. (2013). Free Movement of Goods : Guide to the Application of Treaty Provisions Governing the Free Movement of Goods. Brussels: European Commission.
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