Analyzing Spanish Government's Restrictions Under EU Law

This assignment involves analyzing the Spanish government's proposed restrictions on e-cigarettes, motor vehicle checks, and microwaves under European Union law. The report will investigate whether these restrictions comply with EU laws, specifically Articles 34-36 TFEU, Article 45 TFEU, and Article 26 of the EEA Agreement. The analysis will consider the principles of free movement of goods, harmonization, and public interest as they relate to environmental protection.

EU Law

Table of Contents
INTRODUCTION...........................................................................................................................5
MAIN BODY..................................................................................................................................5
1. Announcement by the Spanish government over banning E-Cigarettes.................................8
2. Banning the advertisement of liquor chocolates on the television..........................................9
3. Ban on the importation of motor vehicles older than 15 years..............................................10
4. Compulsory inspection of microwaves to meet the environmental and safety standard of
Spain..........................................................................................................................................11
CONCLUSION..............................................................................................................................11
REFERENCES..............................................................................................................................13
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INTRODUCTION
The European Union has more than 18 countries as its members. All there nations are
referred as the member state of EU. The EU have its own s laws and legislations which regulates
and governs the trade and business relations among the members countries of EU. These laws are
applicable to all the countries with equality irrespective of their national laws. Over their national
laws there is a preference given to the EU law. For the free movement of good the treaty on the
functioning of European Union is formed since long which governs the general relationship as
well as movement of humans and good among the member states of EU. The present report is
related to the same which defines that what rights of a member nation are over application of
certain laws in these nations for trade and commerce with other member nations and their
authentication. The report will analyses that the certain banns and conditions of import and
advertise of product by the Spanish government applicable. To what extent a member nation is
given a right to act on its own under the circumference of the EU laws.
MAIN BODY
Treaty in the functioning of the European Union
The TFEU came into force on December 1, 2009 which was amendment of the earlier
treaty on the Lisbon and the Treaty of European union. The new treaty was changes and
established to being in the social dimensions to the EU. The addition includes the
nondiscriminatory principles and the equality between women and men. This treaty is one of the
primary treaty of the EU which sets out the scope of the EU authorities to legislate and the
principles of law in those areas where the EU territory extends. The TFEU contain several
articles which define the scope of trade and commerce as well as movement of human among the
member states. This establishes the basic of the legal values of for all the EU member countries.
The treaty is divided into 7 different parts (Schütze, 2016). 1st part define the princes of this
treaty, part 2 explains the non-discrimination and citizenship of the union, part 3 defines the
union policies and internal action, part 4 is related with the association of oversee countries and
territories, part 5 is related with external action of union, part 6 institutional and financial
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provision and part 7 define general and final provision. The free movement of goods is defines in
title II of part 3 of TFEU.
The free movement of the goods is first of the four fundamental freedoms of the internal
market of the member nation of EU. This freedom is secured by elimination of the custom duties
and quantitative restricting and also prohibition of the measure having an equivalent effect. This
provision is under mutual recognition which eliminates the physical and technical barriers and
promotions of standardization are added in order to continue the completion of the internal
market.
Article 26:
The article 26 of TFEU fall under the ambit of the internal market and free movement of
goods which defines that the Union shall adopt measures with the aim of establishing or
ensuring the functioning of the internal market, in accordance with the relevant provisions of the
Treaties (Frigo, 2016). The internal market shall comprise an area without internal frontiers in
which the free movement of goods, persons, services and capital is ensured in accordance with
the provisions of the Treaties. The Council, on a proposal from the Commission, shall determine
the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
Article 34: Quantitative restriction-
This article of TFEU states that the views over the trading rules by the member states
which have a capacity to hinder directly or indirectly ,actually or potentially trade and commerce
among the member nations of EU (Kwok, 2019). All this probable effects are considered to be
measures which can have an effect equivalent to quantitative restriction.
Case of Cassis de Dijon, 1979:
In this case it was established that any product which is illegally manufactured and markets in a
member states and is in accordance with fair and traditional rules along with the manufacturing
process of that specific country it must be allowed to the markets of any other member state.
This case set a mile stone for the product manufactured in a member states and its sales and
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marketing in other members (Christiansen, 2018). It clearly stated that when a commodity is in
the compliance with the rules and principles of TFEU and also production is done according to
the national legislation there is no restriction imposed on the sales and marketing of that product
or commodity in the other member state. The ruling of this case defined an underlying principle
of mutual recognition which operates in the absence of harmonization. This case required that
the member state are obliged to allow the goods that are legally produced and marketed in the
other member state to circulate and to place in their market.
Article 36: Exception to the prohibition of equivalent quantitative restriction
The article 36 of the TFEU have given the member stares a allowance to takes certain
measures to have agonists the effect of quantitative restriction which are justified by general and
non economic consideration (Gallo, 2018). This effect can be placed in the direction of public
morality, public policy and public security. This article is exception to rule of article 34 which
constitutes the fact that interpretation of general principle must be done strictly and in national
measures cannot be held to be a means of arbitrary discrimination or disguised restriction on
trade between the member states. The exceptions are only applicable if they are made in the
public interest and to protect the general rights and interest of the members of public. These
measures must have a direct effect on the niters to public which requires a protection and this
must go beyond the necessary level of the principle of proportionality. For the rule established
in the case of Cassie de Dijon it was held by the court jurisdiction that member states might
make exception to the (van der Mei, 2016)prohibition of measure which have an equivalent
effect on the basis of mediatory requirement . This means exception may be based on to the
effectiveness of fiscal supervision, protection of the public health, fairness of commercial
transection and the defense of the consumer.
Article 114: Harmonization of the national legislation
There are considerable effectors made to harmonize the national legislations. The
adoption of harmonization laws has made it possible to remove any obstacle created by the
national provisions by rendering them inapplicable and to establish common rules (Rosin and
Kärner, 2018). These have a direct aim of presenting a guaranteed free circulation of goods and
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products both along with presenting a respect to the European commission’s treaty and its
objectives for protection of environment and of consumer and competition.
This concept of Harmonization is presented under article 114 of the TFEU which
facilitate the introduction of the qualified majority rules which are required for most of the
directives relating to the completion of single market. The harmonization and concept of mutual
recognition also have a restriction and it is justifiable only when the national rules can not
considered being equivalent and creating restrictions.
Article 114 (3):
In this article it was stated by the European commission that the harmonization concept
given article 114 related to health, safety, environmental protection and consumer protection will
be taken as high level of protection (Akman, 2016). It states that if, after the adoption of a
harmonization measure by the European Parliament and the Council, by the Council or by the
Commission, a Member State deems it necessary to maintain national provisions on grounds of
major needs referred to in Article 36, or relating to the protection of the environment or the
working environment, it shall notify the Commission of these provisions as well as the grounds
for maintaining them. This means that member states if thinks that to harmonies with the
legislation and rules of EU and that of the other nation is not against environment protection of
its nation it must take an approval form the commission by stating the grounds for revoking the
principle of harmonization.
1. Announcement by the Spanish government over banning E-Cigarettes
As per Article 26 of the TFEU the Spain being one of the member nation of the EU the
government have a duty to follow all the rues and provisions related to the EU imposed on the
member country over free movement of goods and products amount the member state, there
must be free flow of goods and products intra states (Orlandini, 2018). Also it is requires to act
in accordance to the article 34 if the treaty which requires free flow of goods among the member
nations which out any quantitative restriction as described in the case of Cassie di Dijon.
However, as per the arctic 36 of this treaty every nation have a right to protect the interest
of the public, their heath and environment. In this regards they can put quantitative restriction on
the import as well as free flow of goods form other member nation. The article 36 stated that
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the government can put restriction on free flow of goods from one member to its nation of
chances are there to likely to damage the heath of public or cause a damage to the environment.
This is a known factor that cigarettes are harmful to the health of people. Now in the given case
e-cigarettes have shown a potential chance of causing cancer to the public of Spain. So i in
accordance to the article 36 of TFEU and also to the exception of case Cassie de Dijon the
Spanish government have a right to imposed a ban of the E-cigarettes on Spain. This means
there will be a been on import of this product form other member nations which is in
contradiction of the article 26, 34 and 114 of the TFEU. The government of Spain will hamper
the concept of harmonized legal framework as well as the hinder he free member of goods.
But in this case the protection of the interest of human as well as environment prevails where
the as per the article 34 of the TFEU the government can put a ben of the sale and purchase of
E-Cigarettes within the country as well as intra country.
With this it can be stares the government of Spain is imposing a ban on E-cigarettes in
context of prevention of the health of its citizen and it is under the ambit of article 36 of TFEU.
This means that the government of Spain to secure the healthy lives and protection of the well
being has a right to impose a ban and restrict the trading of E-Cigarettes in Spain. In this regard
the Spanish government is required to make a presentation to the commission to show the
potential harmful effect of –Cigarettes on the health of Spanish people as the potential reason to
go against article 26,34 and 114 of the TFEU.
2. Banning the advertisement of liquor chocolates on the television
The concept of TFEU is to bring to in a common legal framework for all the member
nations of EU. The articles of TFEU requires that all the member nations are required to follow
the rules and provisions established by the EC under TFEU. The article 26states the principle of
internal markets where the EC have a duty to established a market common for all the member
nation with a single codified law system (Bull, 2018). This includes free movement of goods
intra nations with on qualitative restriction which are prohibited under article 34 of the treaty.
This concepts was established in the case of Cassie de Dijon. In this case it was stares that
though the product is illegal but if it is in the accordance with the rules of TFEU and being
produced as per the national laws no member states can reject the free movement of such goods
in their respective nations. For the present case of banning the advertisement of liquor
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chocolates it can be stared that it can be stated that chocolates are a weakness of children and
when a person think of chocolates the first consumers comes in the mind are kids. Though the
fact is that chocolate consumption is not restricted to the children only, all age group have a
liking towards chocolate. Also, advertisement are the one think which is a primary source of
attracting the consumers for purchasing the product. So when young generation, adolescent and
children watch the advertises of liquor chocolate there are more chances that they will develop
an urge to consume the liquor chocolates. This can make them addicted to liquor and moreover
to consume liquor at the young age is also illegal. So to protect the interest of the young
generation of the Spain it is in the interest of members of public to restrict the advertisements. So
as per the rules and provision of article 36 of TFEU the Spanish government have all rights to
restrict the advertisement placements of the television in the context of protection of public
health.
3. Ban on the importation of motor vehicles older than 15 years
AS per the article 36 of the TFEU a member nation have been given a power to stop
the free flow of goods and product from other member nation for protection of the environment
of that particular nation. This exception is given to the qualitative restriction imposed under
article 36 of TFEU. The motor vehicles which are older than 15 years have older technologies
and older engines and the article 114 states that the provision of harmonization were brought in
with the concept of bringing in harmony in movement of goods along with technological
harmony. To import vehicle older then 15 years are likely to emit more carbon monoxide as well
as more smoke and consumption of more petroleum products (Orlandini, 2018). All these
factors are likely to affect the environment in negative manner only. So to protect the
environment from the harmful effect of old motor vehicles the Spanish government can ban the
import of motors vehicles older than 15 years in the interest of public health and for
environmental protection. For this the government is required to comply with the rules of article
114 (3) and shows the harmful effects along with the interests that are required to be protected
under article 114 of TFEU.
With this it can be started that the government of Spain have a right to act in the interest
of its citizen to protect environment and keep it lathy for its people. Any foreseeable damage to
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the environment cannot be ignored so as per article 36 of the TFEU the government can put a
restriction on the import of motor vehicles older than 15 years.
4. Compulsory inspection of microwaves to meet the environmental and safety standard of Spain
Article 114 defines that the TFEU is formed with a motive of bringer in a common law
for whole of EU for its member nations. The responsibility is imposed on EC to bring in a
harmonized legal structure for EU. This means that as per article 26 of TFEU EC have duty to
bring in a common legal framework. The article 34 have prohibited to bring in any quantitative
restriction on the free movement of good among the member nation of EU. But as given under
article 36 ad exception to the case of Cassie de Dijon it can be stated that a national government
can hinder the free movement of goods in its nation for protection of the public interest and
public health and environment.
The government of Spain is likely to have a every right to protect the interest of public
from any electronic devise or else. For the case of compulsory inspection of microwaves if the
standers of Spanish government and EU does not match the government of Spain have likely to
take permission under article 114 (3) from EC and then it can impose a compulsory requirement
of inspecting the imported microwaves from other member nation.
CONCLUSION
From the above report it can be concluded that the treaty on the Functioning of European
union have established various principle for the regulating the legal framework of its member
states. It has been adopted with goals of presenting a common rules, provisions and laws relating
to the member countries. For the presents cases which are certain restriction and imposition to be
brought in the by the Spanish government it have been articulated that , the government have
been provided with every right to protect the interests of its public and protect the environment.
For this it can avoided the rule of free movement of goods as well as the principle of
harmonization. The proposal of Spanish government have been analyzed under the ambit of
article of TFEU where it has been clearly investigated that e-Cigarettes have a clear risk of
getting cancer so the national government have a right to put ban on such to protect public from
it potential harm. The checking of motor vehicle is in the interest of environment protection so
its ban is also particle. The checking imposition on the microwaves are both in interest of public
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safety as well as environmental protection so this can also be imposed. The ban on the
advertisement seems likely to affect the public interest and cause a harm to environment so its
ban is advisable to the Spanish government.
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REFERENCES
Books and journals
Akman, P., 2016. The Tests of Illegality Under Articles 101 and 102 TFEU. The Antitrust
Bulletin, 61(1), pp.84-104.
Bull, H., 2018, January. Article 26 [Anti-dumping and anti-subsidies measures]. In Agreement on
the European Economic Area (pp. 362-367). Nomos Verlagsgesellschaft mbH & Co. KG.
Christiansen, P., 2018, January. Article 36 [Action for annulment]. In Agreement on the
European Economic Area(pp. 1041-1046). Nomos Verlagsgesellschaft mbH & Co. KG.
Frigo, M., 2016. The Implementation of Directive 2014/60/EU and the Problems of the
Compliance of Italian Legislation with International and EU Law. Santander Art and
Culture Law Review, 2(2), pp.71-84.
Gallo, D., 2018. Article 36 of the Charter and access to public services: scope, extent and limits
of a sui generis provision.
Kwok, K.H.F., 2019. THE CONCEPT OF “AGREEMENT” UNDER ARTICLE 101 TFEU: A
QUESTION OF EU TREATY INTERPRETATION. EUROPEAN LAW REVIEW, 44(2),
pp.196-221.
Orlandini, G., 2018, September. Article 45 TFEU. In International and European Labour
Law (pp. 41-66). Nomos Verlagsgesellschaft mbH & Co. KG.
Orlandini, G., 2018, September. Article 46 TFEU. In International and European Labour
Law (pp. 66-68). Nomos Verlagsgesellschaft mbH & Co. KG.
Rosin, K. and Kärner, M., 2018. The Limitations of the Harmonisation of Criminal Law in the
European Union Protected by Articles 82 (3) and 83 (3) tfeu. European Journal of Crime,
Criminal Law and Criminal Justice, 26(4), pp.315-334.
Schütze, R., 2016. Of types and tests: towards a unitary doctrinal framework for Article 34
TFEU?. European law review., 41(6), pp.826-842.
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van der Mei, A.P., 2016. EU external relations and internal inter-institutional conflicts: the
battlefield of article 218 TFEU. Maastricht Journal of European and Comparative
Law, 23(6), pp.1051-1076.\
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