Support to Kosovo institutions on SAA implementation · Twinning project KS 14 IPA OT 01 16...

Support to Kosovo institutions on SAA implementation

Pristina, … June 2017

Twinning Project KS 14 IPA OT 02 16

Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland

ARTICLE 36 TFEU

2 Pristina, 27 June 2017

Twinning project KS 14 IPA OT 01 16 “Support

to Kosovo institutions on SAA implementation”

PROPORTIONALITY TEST


ARTICLE 36 TFEU




Article 36 TFEU

The provisions of Articles 34 and 35 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.

+ other mandatory requirements


ARTICLE 36 TFEU




Proportionality

In order to be justified under Article 36 TFEU or one of the mandatory requirements established in the case-law of the Court of Justice, a state measure has to comply with the principle of proportionality.

The measure in question has to be:

• necessary in order to achieve the declared objective;

• the objective could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on intra-EU trade.

(Case 120/78 Rewe-Zentral, Case C-313/94 Graffione, Case C-3/99 Ruwet, Case C-390/99 Canal Satélite Digita, Case C-254/05 Commission v Belgium)


ARTICLE 36 TFEU




Proportionality test : adequacy, necessity, and proportionality stricto sensu of a national measure.

Risk to the protected values must be:

real

direct

serious.

Narrow interpretation of exceptions by the CoJ.


ARTICLE 36 TFEU




The mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of the need for, and proportionality of, the provisions enacted to that end. Those provisions must be assessed solely by reference to the objectives pursued by the national authorities of the Member State concerned and the level of protection which they are intended to provide (Case C-124/97 Läärä and Others).

The CofJ does accept any purely economic grounds (Case C-109/04 Kranemann, Case C-456/10, ANETT).

Art. 36 TFEU may not be used to justify restrictions on trade in goods between Member States justified by the need to facilitate administrative work or reduce public expenditure (C-426/92 Deutsche Milch-Kontor), except if in the absence of such restrictions costs for Member State would "obviously exceed the reasonably acceptable" level of public expenditure or administrative workload (C-426/92 Deutsche Milch-Kontor, 104/75 De Peijper).


ARTICLE 36 TFEU




Example

C-315/92 Clinique - Prohibition of importation and marketing of a product bearing the name "Clinique" - Justification – XXX – Proportionality

- What value is protected by such prohibition?

- Is prohibition the best (most adequate) measure to achieve the protection of the value (lack of alternative)?

- Is the goal cannot be achieved by less restrictive measure then prohibition?

The measure was not proportional to the goal of protection of consumers which could think that products named Clinique could be medicinal products or could be safer, more effective then others beauty products.

Products Clinique were sold in a beauty retail shops not in pharmacies; products were not advertise as medicinal products so they did not mislead consumers.


ARTICLE 36 TFEU




1. National legislation prohibiting of certain goods on the ground that they are indecent or obscene when the legislation contains no prohibition on the manufacture and marketing of the same goods on its territory — Measure having equivalent effect — Justification — Protection of public morality (34/79 Regina v Henn & Darby, 121/85 Conegate)

Yes No

2. National legislation prohibiting, without prior authorisation, the importation of undenatured ethyl alcohol of an alcoholic strength of more than 80% — Measure having equivalent effect to a quantitative restriction — Justification — Protection of public health and public order (C-434/04 Ahokainen)

Yes No

3. Systematic frontier inspections as to the composition and quality of skimmed-milk powder intended for denaturing or processing into animal feed in another Member State — Measure having equivalent effect — Justification — Fraud prevention (C-426/92 Deutsche Milch-Kontor)

Yes No


ARTICLE 36 TFEU




4. National legislation increasing number of administrative requirements involving the production of documents necessary for parallel imports of vehicles whether new or already registered from other Member States — Measure having equivalent effect — Justification — Public policy — Prevention of registration of stolen vehicles (154/85 Commission v Italy)

Yes No

5. National legislation prohibiting the addition of nisin to processed cheese sold on the domestic market other than processed cheesed intended for export to other member states — Measure having equivalent effect — Justification — Protection of public health (53/80 Eyssen)

Yes No

6. National legislation prohibiting without prior authorization the marketing of foodstuffs to which vitamins have been added — Measure having equivalent effect — Justification — Protection of public health (174/82 Sandoz).

Yes No


ARTICLE 36 TFEU




7. Rules restricting the import by private individuals of medicinal preparations authorized and available without prescription in the Member State of importation, but purchased in a pharmacy in another Member State — Justification — Protection of public health (215/87 Schumacher)

Yes No

8. National legislation restricting the supply of medicinal products for human use by a pharmacy established in another Member State on the basis of individual orders placed by consumers on the internet – Justification – Protection of public health (C-322/01 DocMorris)

Yes No

9. National legislation imposing compulsory indication on the container and packaging of particular precautions to be observed in use of a cosmetic product, whereas it can be effectively conveyed by the use of pictogrammes or signs other than words — Measure having equivalent effect — Justification — Protection of public health (C-169/99 Schwarzkopf)

Yes No


ARTICLE 36 TFEU




10. Member State which, generally and systematically, submits all vehicles which are more than three years old and have previously been registered in other Member States for testing as to their physical condition prior to registration in that State, without taking any account whatsoever of tests that may have already been carried out in other Member States — Measure having equivalent effect — Justification — Road safety and the protection of the environment (C-297/05 Commision v Netherlands)

Yes No

11. National legislation prohibiting mopeds, motorcycles, motor tricycles and quadricycles from towing a trailer specially designed for them and lawfully produced and marketed in other Member States — Measure having equivalent effect — Justification — Protection of road safety (C-110/05 Commission v Italy)

Yes No

12. National provision prohibiting the selling of, and collecting of orders for, silver jewellery in a door-step-selling situation where such a provision applies to all relevant traders in so far as it affects in the same manner, in law and in fact, the marketing of domestic products and that of products from other Member States — Measure having equivalent effect — Justification — Protection of consumers (C-441/04 A-punkt)

Yes No


ARTICLE 36 TFEU




13. National legislation which provides for a system of fixed prices for the sale by pharmacies of prescription-only medicinal products for human use — Quantitative restriction on imports — Measure having equivalent effect — Justification — Protection of the health and life of humans (C-148/15 Deutsche Parkinson Vereinigung)

Yes No

14. National rules prohibiting the importation and the placing on the market of blood products provided from donations which were not entirely unpaid (for which payment has not been made and for which the reimbursement of costs incurred by the donor in order to carry out the blood donation was not made) – Measures having equivalent effect to quantitative restrictions – Justification – Protection of public health – Quality and safety of the blood and the blood components (C-421/09 Humanplasma)

Yes No

15. National regulation which prohibits the use of personal watercraft on waters other than designated waterways – Measures having equivalent effect to quantitative restrictions – Justification – Protection of environment (C-142/05 Åklagaren v Percy Mickelsson and Joakim Roos)

Yes No


ARTICLE 36 TFEU




16. National legislative provision prohibiting the sale of non-packaged confectionery (various types of non-packaged chewing gum) from vending machines – Measures having equivalent effect to quantitative restrictions – Justification – Protection of public health – Hygiene of foodstuffs (C-366/04 Georg Schwarz)

Yes No

17. National rules which prohibit the sale and transfer by mail order of image storage media which have not been examined and classified by a competent national authority or by a national voluntary self-regulatory body for the purposes of protecting young persons and which do not bear a label from that authority or body indicating the age from which they may be viewed – Measures having equivalent effect to quantitative restrictions – Justification – Child protection (C-244/06 Dynamic Medien)

Yes No

18. National legislation which prohibits the affixing of tinted film to the windscreens and the windows alongside the passenger seats in motor vehicles – Measure having equivalent effect to a quantitative restriction on imports – Justification – Combat crime and ensure road safety (C-265/06 Commission v Portugal)

Yes No


ARTICLE 36 TFEU




Thank you very much for your attention!

Pristina, 27 June 2017

Support to Kosovo institutions on SAA implementation · Twinning project KS 14 IPA OT 01 16...

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