Supreme Court of Judicature, Library of Law, Lj. (CPKLJ)
13.
Article 36 : derogations : (ex-Article 30 TEC)
Hojnik, Janja
Although national rules in form of quantitative restrictions and measures having equivalent effect hinder the internal market, interests of uniformly regulated market, nevertheless, cannot always ...automatically override interest pursuit by the national measures. The internal market is in fact just a remedy to achieve EU goals and while the internal market often helps to achieve these goals, it may in certain circumstances produce opposite effects. EU law therefore permits national legislation that prima facie restricts free movement of goods from other MS if this "can be justified by a public-interest objective taking precedence over the free movement of goods". In this respect, scholars as well as the CJEU distinguish between restrictions that are justified based on the TFEU, which may as a matter of principle only serve to justify (formally or directly) discriminatory measures and have been reserved by the MS already at the occasion of drafting the original Treaty. When the EU Court also prohibited those national measures that have not been directly discriminatory, however, it also overtook the role of assessing their justification. That is to say that if a measure is prohibited by the provisions of Articles 34 or 35 TFEU (former Articles 28 and 29 EC) its application by the MS may nevertheless be permitted for two groups of reasons: the first one being determined by Article 36 TFEU (former Article 30 EC); and the second one determined by the so-called rule of reason as set in the case Cassis de Dijon (-> Article 34 TFEU para 24-27).
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