Commission Notice Guide on Articles 34-36 of the Treaty on the Functioning of the European Union (TFEU) (Text with EEA relevance) 2021/C 100/03

• Celex Number: 52021XC0323(03)
• Subject Matter: Free movement of goods,Principles, objectives and tasks of the Treaties,Internal market - Principles
• Published date: 23 March 2021
• Official Gazette Publication: Official Journal of the European Union, C 100, 23 March 2021

23.3.2021 EN Official Journal of the European Union C 100/38

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COMMISSION NOTICE

Guide on Articles 34-36 of the Treaty on the Functioning of the European Union (TFEU)

(Text with EEA relevance)

(2021/C 100/03)

PREFACE

The long-term action plan for better implementation and enforcement of single market rules (hereinafter ‘Enforcement Action Plan’) (1), adopted in March 2020, puts the single market and its enforcement at its core. To improve compliance and avoid market segmentation, Action 1 of the Enforcement Action plan foresees that the Commission will provide more specific guidance tools for national authorities and stakeholders. It also foresees the update of the Guidance on the application of Articles 34-36 TFEU.

Hence, it is in this context that the Commission has updated this Guidance. This document intends to facilitate the application of EU law on the free movement of goods, step up enforcement, and contribute to the benefits that the Internal Market for goods can bring to EU businesses and consumers. It intends to provide a better understanding of the application of Articles 34-36 of the Treaty on the Functioning of the European Union (TFEU) in light of the most relevant jurisprudence of the Court of Justice of the European Union (CJEU) in this area. It also intends to reinforce a coherent application of the principle of the free movement of goods throughout the Internal Market, helping addressing any remaining obstacle and preventing new ones to raise.

This guide builds on the previous edition of 2009 (2) and incorporates the most relevant CJEU jurisprudence of the last eleven years to ensure it provides a comprehensive and up-to-date overview of the application of Articles 34 to 36 TFEU. However although it summarises the relevant case law and provides supplementary commentary, it cannot be considered exhaustive. The guide is not a legally binding document.

EU legislation and rulings mentioned in this guide can be found in Eur-Lex (3), and judgments of the Court are also available on the webpage of the CJEU (4).

TABLE OF CONTENTS

1 THE ROLE AND IMPORTANCE OF THE FREE MOVEMENT OF GOODS IN THE INTERNAL MARKET 41

2. THE TREATY PROVISIONS 41

3. THE SCOPE OF ARTICLE 34 TFEU 42

3.1. General conditions 42

3.1.1. Non-harmonised area 42

3.1.2. Meaning of ‘goods’ 42

3.1.3. Addressees 43

3.1.4. Active and passive measures 44

3.2. Territorial scope 45

3.3. Cross-border trade 45

3.4. Types of restrictions under Article 34 TFEU 46

3.4.1. Quantitative restrictions 46

3.4.2. Measures of equivalent effect 46

3.4.2.1. Restrictions on use 47

3.4.2.2. Discriminatory selling arrangements 48

3.5. The Mutual Recognition principle 49

4. TYPES OF MEASURES 51

4.1. National provisions related to the act of import (import licences, inspections and controls) 51

4.2. Obligations to appoint a representative or to provide storage facilities in the importing Member State 51

4.3. National bans on specific products/substances 52

4.4. Price measures 53

4.5. Authorisation procedures 55

4.5.1. Type approval 55

4.5.2. Car registration 56

4.6. Advertising restrictions 56

4.7. Technical regulations containing requirements as to the presentation of goods (weight, composition, presentation, labelling, form, size, packaging) 57

4.8. Indications of origin, quality marks, incitement to buy national products 58

4.9. Restrictions on distance selling (internet sales, mail order, etc.) 59

4.10. Deposit obligations 59

4.11. Reimbursement and parallel imports 60

4.12. Obligation to use the national language 62

4.13. Restrictions on the importation of goods for personal use 62

5. AGRICULTURAL PRODUCTS 63

6. EXPORT RESTRICTIONS (ARTICLE 35 TFEU) 64

6.1. Definition of ‘Exports’ 64

6.2. Quantitative restrictions and measures having equivalent effect 64

7. JUSTIFICATIONS FOR RESTRICTIONS TO TRADE 66

7.1. Article 36 TFEU 66

7.1.1. Public morality, policy and security 67

7.1.2. Protection of the health and life of humans, animals and plants (precautionary principle) 68

7.1.3. Protection of national treasures possessing artistic, historic or archaeological value 69

7.1.4. Protection of industrial and commercial property 69

7.2. Mandatory requirements 71

7.2.1. Protection of the environment 72

7.2.2. Consumer protection 73

7.2.3. Other mandatory requirements 73

7.3. Proportionality test 74

7.4. Burden of proof 76

8. RELATIONSHIP TO OTHER FREEDOMS AND ARTICLES OF THE TREATY RELATED TO THE FREE MOVEMENT OF GOODS 76

8.1. Fundamental freedoms 76

8.1.1. Article 45 TFEU – Freedom of movement of workers 76

8.1.2. Articles 49 and 56 TFEU – Freedom to establish and provide services 77

8.1.3. Articles 63 TFEU et seq. – Free movement of capital and payments 79

8.2. Other relevant Treaty articles 79

8.2.1. Article 18 TFEU – Non-discrimination based on nationality 79

8.2.2. Articles 28 and 30 TFEU – The customs union 80

8.2.3. Article 37 TFEU – State monopolies 80

8.2.4. Article 107 TFEU – State aids 82

8.2.5. Article 110 TFEU – Tax provisions 83

8.2.6. Article 351 TFEU 84

9. ENFORCEMENT OF ARTICLES 34 AND 35 TFEU 84

9.1. Direct effect – private enforcement 84

9.2. SOLVIT 84

9.3. Infringement proceedings under Articles 258 and 260 TFEU 85

9.3.1. Infringement procedure 85

9.3.2. Complaints 85

10. RELATED INSTRUMENTS OF SECONDARY LAW 86

10.1. Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services 86

10.2. Regulation (EU) 2019/515 – The ‘Mutual Recognition’ Regulation 87

10.3. Regulation (EC) No 2679/98 – The ‘strawberry’ Regulation 87

1. THE ROLE AND IMPORTANCE OF THE FREE MOVEMENT OF GOODS IN THE INTERNAL MARKET

The internal market is one of the EU’s greatest achievements. It is at the heart of the European project, has fuelled economic growth in the past decades, and brought concrete benefits to European consumers and businesses. A well-functioning single market becomes even more essential during sanitary crises such as the COVID-19 pandemic. It allows products to circulate freely, ensuring their availability, and reaching those that are most in need EU wide.

The integrity of the single market is also a necessary tool to fuel collective recovery for all Member States’ economies. In this regard, the internal market cannot only facilitate that EU citizens enjoy a wider choice of products, but also gives EU economic operators a large domestic market, stimulating trade and competition, and improving efficiency.

Today’s internal market makes it easy to buy and sell products across the 27 EU Member States with a total population of more than 450 million people and gives consumers a wide choice of products. At the same time, the free movement of goods is beneficial for business, as around 75 % of intra-EU trade is in goods. The single European marketplace helps EU businesses to build a strong platform in an open, diverse and competitive environment. This strength fosters growth and job creation in the EU and gives European businesses the resources they need in order to be successful in the global market. A properly functioning internal market for goods is thus a critical element for the current and future prosperity of the EU in a globalised economy (5).

From a legal perspective, the principle of the free movement of goods has been a key element in creating and developing the internal market. Articles 34 to 36 TFEU define the scope and content of the principle by prohibiting unjustified restrictions on intra-EU trade. However, they are only applicable in non-harmonised areas.

Harmonisation legislation consists of EU regulations and directives which aim at creating common rules which are applicable in all Member States. While regulations are directly applicable and binding acts which must be applied in their entirety across the EU, directives are acts which only set out a goal that all Member States must achieve. Harmonised legislation has specified the meaning of the internal market in many areas and has thereby framed the principle of the free movement of goods in concrete terms for specific...