Introduction
This essay explores potential amendments to Article 36 of the Treaty on the Functioning of the European Union (TFEU), which governs exceptions to the free movement of goods within the EU. Article 36 allows Member States to justify restrictions on imports, exports, or goods in transit on specific grounds, such as public morality, public policy, or the protection of health and life. The purpose of this analysis is to propose changes that could enhance clarity and address contemporary challenges while maintaining the balance between free movement and national interests. This discussion will focus on the scope of justifications, the issue of proportionality, and the potential inclusion of environmental concerns. Through a critical lens, the essay evaluates the current framework and suggests reforms to ensure its relevance in a rapidly evolving EU context.
Scope of Justifications: Limiting Ambiguity
Article 36 TFEU provides Member States with derogations from the free movement of goods under specific grounds, including public morality, public policy, and health protection. However, the broad phrasing of these justifications often leads to inconsistent application across Member States. For instance, what constitutes ‘public morality’ can vary significantly based on cultural or political contexts, creating legal uncertainty (Chalmers et al., 2019). I propose a change to Article 36 by introducing clearer definitions or guidelines for these terms, possibly through an annex or interpretive notes issued by the European Commission. This would reduce ambiguity and ensure more uniform implementation across the EU, thus supporting the integrity of the single market. Additionally, regular reviews of case law from the Court of Justice of the European Union (CJEU) could inform these guidelines, ensuring they reflect evolving societal norms.
Proportionality: Strengthening Oversight
A critical limitation of Article 36 is the potential for Member States to abuse derogations by imposing disproportionate measures. The principle of proportionality, while implicit in CJEU rulings, is not explicitly mentioned in the Article itself (Barnard, 2020). I would amend Article 36 to explicitly mandate that any restriction must be proportionate to the objective pursued and that less restrictive alternatives must be considered. This change would align the text with established CJEU precedents, such as in *Cassis de Dijon* (Case 120/78), where the Court emphasised necessity and proportionality. Indeed, codifying this principle would provide a stronger legal basis for challenging unjustified barriers, thereby protecting free movement while allowing legitimate national interests to be safeguarded.
Environmental Concerns: A Necessary Addition
One notable gap in Article 36 is the absence of environmental protection as a ground for derogation. Given the EU’s commitment to sustainability, as evidenced by the European Green Deal, this omission appears outdated (European Commission, 2019). I propose adding explicit reference to environmental protection as a justifiable ground for restricting free movement, provided such measures are proportionate and non-discriminatory. For example, a Member State could restrict imports of goods produced through environmentally harmful practices. This amendment would reflect contemporary priorities and align Article 36 with broader EU policy objectives, though careful drafting would be needed to prevent misuse as a protectionist tool.
Conclusion
In conclusion, revising Article 36 of the TFEU is essential to address ambiguities in justifications, strengthen the principle of proportionality, and incorporate modern challenges such as environmental protection. These proposed changes aim to balance the fundamental principle of free movement with legitimate national interests, ensuring the provision remains fit for purpose in a dynamic EU landscape. The implications of such amendments would likely include greater legal certainty and alignment with EU sustainability goals, though they must be cautiously implemented to avoid unintended protectionism. Ultimately, these reforms would enhance the relevance and effectiveness of Article 36 in governing the single market.
References
- Barnard, C. (2020) The Substantive Law of the EU: The Four Freedoms. 6th ed. Oxford University Press.
- Chalmers, D., Davies, G. and Monti, G. (2019) European Union Law: Text and Materials. 4th ed. Cambridge University Press.
- European Commission (2019) The European Green Deal. European Commission.
