The Free Movement of Goods Within The European Union - Essay Example

The Free Movement of Goods Within The European Union Introduction The Netherlands may seek relief for enforcement of the EC decision to lift its ban on poultry exports from the Nuetherlands against the UK under the provisions of European Community Law. By virtue of Section 2 of The European Community Act 1972 the United Kingdom indorsed European Law making it binding on the United Kingdom. Section 2 of the European Community Act makes provision for ‘all such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression enforceable Community right and similar expressions shall be read as referring to one to which this subsection applies.’1 The wording of Section 2(1) of The European Community Act 1972 indicates that even if there is a conflict between the applicable domestic legislation and the law of the European Community law, European Law will prevail. There are three systems of law under the European Community only two of which are relevant in determining Martin’s rights in the context of the directive and regulation issued by the European Union. The two applicable systems are referred to as primary legislation which consists of the various Treaties under the European Union and secondary legislation which are essentially Recommendations, Directives and Regulations. The third system refers to decisions which are handed down in the European Court of Justice.2 The Applicable Law The framework of the EC Treaty encompasses a free and open market among the Member States. Articles 23-31 which is headed ‘Free Movement of Goods’ is designed to promote this concept.3 Article 23 provides for the exemption of customs duties on all imports and exports throughout the Member States.4 Article 28 forbids the implementation of ‘Quantitative restrictions on imports and all measures having equivalent effect …between Member States.’5 Article 29 makes the same provision in respect of exports.6 Article 30, however, provides that ‘…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.’7 It is against this background that the Netherlands may pursue an action against the UK. The position taken by the UK authorities in relation to the lifting of the poultry ban on the Netherlands is a contravention of the spirit of free and open trade within the European Community. The European Community has set as its goal the facilitation of a free enterprise market while simultaneously protecting the consumer interest within the Member States. The EC Treaty contains a legal framework which reflects this goal. This goal is reflected in Article 2 of the EC Treaty which establishes the European Community and provides as follows:- ‘The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.’8 A similar set of circumstances gave rise to a reference to the European Court of Justice in respect of a decision which affected France. The resulting case was France v Commission Case C-393/01. In 1998, the European Commission placed a ban on Portugal prohibiting the export of bovine animals, beef and veal as well as products from these animals as a result of an outbreak of mad cow disease.9 In April 2001, the Commission took steps to lift the ban setting out certain conditions for the Portugal authorities to meet. In July of the same year, the Commission lifted the ban in its entirety. France took exception to the ban and challenged the Commission’s second decision before the European Court of Justice. The decision was challenged on the grounds that the Commission had not taken appropriate steps to properly determine that the conditions set forth in the first decision were met.10 The European court found France’s favor and determined that ‘from the principle laid down in the EC Treaty that a high level of human health protection must be ensured in the definition and implementation of all Community policies and activities.’11 The European Court of Justice held that the inspections criteria should have included specific checks in respect of the disease as well of general inspections ‘whose purpose is to verify the implementation of official controls, to examine the development of the incidence of the disease, to verify the enforcement of national measures and to conduct a risk assessment.’12 The European court further determined that the purpose of requiring vigorous inspections was twofold. It is ‘not solely to confirm the adoption of national provisions but also to verify their application.’13 On the facts of the case for discussion it appears that the European Commission conducted a long and thorough investigation which lasted at least nine months. It is assumed that the decision was communicated to each of the Member States with the requisite information. If indeed it fell short of the criteria set forth by France v Commission Case C-393/01 the United Kingdom cannot challenge the lifted ban in the manner that it did. The United Kingdom is required to take the matter up with the European Court. Since they did not do so, they are bound by the decision to lift the ban. Obviously, the prohibitive measures taken by the UK authorities can be viewed as a means of imposing ‘a disguised restriction on trade between Member States’ contrary to Article 30 of the EC Treaty. A similar trade restriction has already been adjudicated before the European Courts of Justice. In Cassis de Dijon (1979)[ECR 1979 the goal of the European Community as enunciated in Article 2 can be said to have given rise to the doctrine of mutual recognition. In this case it was held that any product that was lawfully manufactured and sold in any Member State was required to be accepted in any other Member State.14 In the Cassis de Dijon case the German government objected to the importation of a French alcoholic beverage on the grounds that its alcoholic content was too high and could induce overindulgence. .15 Obviously these facts are consistent with the facts of the case for discussion where UK officials took a position against the importation of poultry from a Member State on the grounds that they were not satisfied with the lifting of the ban. The fact that the ECJ overruled the German government is significant. It would be contrary to the principles set forth in Article 2 of the EC Treaty to permit Member States to each set policies and principles that are essentially inconsistent with the principles and policies set by other Member States. If the judiciary did not have the authority to intervene, ‘economic and social cohesion and solidarity among Member States’ would be in disarray. Based on this ruling, the UK government is not at liberty to refuse the importation of goods coming from another Member State on grounds such as those stated. However, the Cassis de Dijon appears to contradict or somehow undermine the spirit and intent of Article 30 of the EC Treaty which grants some measure of domestic policy control among Member States. The judiciary has effectively narrowed the scope and range of the application of Article 30 in such a way that it can be argued that Article 30 is an exception not to be applied unless in extreme and exceptional circumstances. Cassis de Dijon effectively enforces a judicial strong arm over the movement of goods. Moreover the position taken by the UK authorities will have to examined in light of the decision rendered by the European Court of Justice in Riseria Luigi Geddo v Ente Nazionale Risi. [1973] EUECJ R-2/73. The European Court of justice discussed the meaning and intent of Article 5 of the EEC Treaty and how it relates to ‘quantitative restrictions’ as enunciated in Article 20(2) (now Article 28) of the Treaty. The court held that ‘in providing that Member States shall take all appropriate measures to ensure fulfillment of their obligations and that they shall abstain from any measure which could jeopardize the attainment of the objectives of the treaty, Article 5 places a general obligation on Member States the precise tenor of which is each particular case depends on the provisions of the treaty or the rules which emerge from its general framework.’16 The European Court went on to explain that ‘the prohibition of all quantitative restrictions or measures having equivalent effect contained in Article 20(2) of Regulation No. 359/67 has among its objects the prevention of Member States from unilaterally adopting measures restricting export to third countries unless they are provided for in regulations, the prohibition, under Article 23, or such a measure in the internal trade of the Community is designed to ensure the free movement of goods within the community.’17 The European Court hastened to add that the prohibition on quantitative goods would extend to a partial prohibition as well as the rule is an absolute one without exception.18 Obviously the implementation of competition polices is not sufficient to balance these distinct interests. That is why it is important for the Netherlands to enforce its right to trade their poultry with the UK within the parameters of Article 28. The UK cannot, according to the cases discussed above invoke protection under Article 30 of the Treaty. Policies have to be adhered to and capable of enforcement in order to have their desired affect. Christain Jeorges points out that ‘seeing the Community as a technocratic arrangement to solve specific economic and social policy tasks also points, however, to the dependence of this conception on the circumstances it was designed to address legally.’19 Member States are under a duty to review their domestic policies to ensure cohesion within the European Union. It appears that the UK is operating on its own internal and domestic policies with total disregard for the EU’s decision to lift the poultry ban and will not be able to hide behind the limited scope of the shield contained in Article 30 of the Treaty. Romania, as a member of the European Union is bound by the provisions of the current Treaties as well as any future Treaties. Jazzy Tunes’ case involves the interpretation and application of secondary legislation as its rights are directly connected to the validity of a safety directive issued by the Council of the European Union. Although directives require enactment by the legislators of individual Member States, they are binding on all members.(European Union Law)20 By virtue of Article 2 of the EU Treaty the recommendation to lift the ban is binding on all Member States. Article 2 provides that ‘the Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities’.21... Moreover Article 249 (formerly Article 189) of the Treaty of Rome 1957 makes provision for directives to be binding on ‘each state to which it is addressed.’22 It has already been determined in Van Gend en Loos v Nederlandse Administratie der Belastingen that the European Community represents a ‘new legal order’ which binds its members. Moreover, in the event a law issued by the European Community contradicts a domestic provision, the European Community’s law will prevail.23 The prevalence of European Community law can be invoked by the Netherlands to compel the UK to receive its poultry. In Publico Ministero v Ratti [1979] ECR it was held that by virtue of Article 189 of the Treaty of Rome, regulations are capable of having the force of law in each Member State if they contain language indicating that the regulation is ‘unconditional and sufficiently precise.’24 The European Court held that Regulations and Directives are unconditional provided they were not subject to some measure of ‘judicial control.’25 It is difficult to imagine how the lifting of the poultry ban can leave any room for judicial control. At the end of the day, the subject goods are either consistent with the EU policy or they are not. Bibliography Cassis de Dijon (1979) ECR 649 European Community Act 1972 European Union Law. http://www.leeds.ac.uk/law/hamlyn/european.htm Viewed April 1, 2007 Foster, Nigel. Blackstone’s EC Legislation. (2006) Oxford University Press France v Commission Case C-393/01 http://curia.europa.eu/en/actu/communiques/cp03/aff/cp0347en.htm Viewed April 1, 2007 Publico Ministero v Ratti [1979] ECR 1629 Riseria Luigi Geddo v Ente Nazionale Risi. [1973] EUECJ R-2/73 “The Market without the State? The Economic Constitution of the European Community and the Rebirth of Regulatory Politics.” European Integration online Papers (EIoP) Vol. 1 (1997) N° 19 http://eiop.or.at/eiop/texte/1997-019.htm#I. Viewed April 1, 2007 Treaty Establishing the European Community Van Duyn v Home Office [1974] ECR 1337 Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/82) [1963] ECR 1 Read More