The trading conditions

This essay will look at how Member States can derogate from the trading conditions governed by European Community (EC) rules, starting with a brief account of those rules. The derogations available under Treaty will then be detailed, followed by derogations developed by Community law. The issue of proportionality is a key element for most, if not all, derogations. I will look at how this issue can affect the judgments arrived at by the European Court of Justice (ECJ).

I will conclude by looking at issues that seem to require further attention by all parties involved in issues of derogating from EC trading rules, for instance clarity of terminology. A fundamental aspect of the European Union concerns trading conditions between Member States, for which the EC Treaty2 expects the structure to be that of a customs union. 3 Article 23(1) (ex Art. 9(1)) states this clearly and lists the actions required to achieve this. Articles 28 & 29 (ex Art. 30 & 34)4 prohibit Member States from imposing quantitative restrictions on imports and exports respectively.

By Article 90 (ex Art. 95) the Treaty halts internal taxation of imports which would produce an equivalent effect to that of customs duties. Given the importance of

the ‘fundamental principle’12 for the free movement of goods, it is unsurprising to find that invoking Article 30 will be closely scrutinised and restrictively interpreted. 13 Indeed Article 30 warns that, “[s]uch prohibitions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. ” This is an approach the Court of Justice will adopt in regard to derogations generally.