The success of the EU Single Market relies heavily on consumers' willingness to purchase goods and services across borders. The Treaty of Lisbon, which amended the Treaty on the European Union and the Treaty establishing the European Community, resulted in the Treaty on the Functioning of the European Union, which enhances the EU's social dimension. The Council organizes the functioning of the Union by determining the areas in which it can exercise its powers and defining their boundaries.

Article 36 of the TFEU is the focus of this essay, and it states that prohibitions or restrictions on imports, exports, or goods in transit can be allowed if justified on the grounds of public morality, public policy, public security, human, animal, or plant life and health protection, national treasures with artistic, historic, or archaeological value protection, or industrial and commercial property protection. However, these prohibitions or restrictions cannot be a way of arbitrary discrimination or trade restriction between Member States.

One of the EU member countries, who is bound by the TFEU, passed a new consumer protection law that is discriminatory, which is the problem question of this essay. Article 36 TFEU provides a list of derogations for discriminatory measures. However, according to case law, overriding reasons concerning the public interest can also justify measures that restrict the free movement of goods, commonly known as mandatory requirements or overriding requirements interest.

There are varying opinions regarding the scope and necessity of derogations under Article 36 TFEU and their requirement. However, based on case law, justifications exhaustively provided in Article 36 TFEU are capable of saving measures that are directly discriminatory. National measures invoked for the accomplishment of the objective must be suitable, proportionate, and not exceed what is necessary. The measure must demonstrate a genuine concern for the objective's achievement in a systematic and consistent manner.

As derogations from fundamental freedom Member States under Article 36 TFEU are treaty exceptions, they must be interpreted narrowly. Free movement barriers cannot be justified solely by economic motives.

Member States commonly use the protection of human health as a reason for implementing barriers to free movement. Article 36 of the Treaty on the Functioning of the European Union (TFEU) includes health and life as protected interests, as confirmed by the European Court of Justice (ECJ) in its early case law. It is up to the Member States to decide on the appropriate level of protection within the boundaries of the Treaty, including the extent and rigor of necessary checks.

The level of protection for human health can be tailored to meet the varying needs of national markets and social situations in the absence of harmonization. Member States are awarded some discretion on this matter. To substantiate a claim that the marketing of a product poses a genuine and significant risk to human health, competent national authorities must provide adequate evidence, such as statistical data, research, and other pertinent scientific information. Member State B conducted a safety review on compounds in vapes that affect minors.

According to Article 36 TFEU, a national rule or practice can only rely on derogation if it is necessary to safeguard human life or health. If alternative measures can safeguard health effectively, less stringent measures, preventing a law or practice from taking advantage of the Article 36 TFEU derogation, must be enacted. Product labels should accurately inform consumers of any potential risks.

Member States' authorities can demand prior authorization for products approved in other Member States, considering relevant technical and laboratory tests. Moreover, importing states must establish tailored authorization procedures to meet their imports' specific needs.

Dassonville established that all Member State trading regulations capable of affecting intra-European trade, directly or indirectly, were considered quantitative restrictions. The Cassis de Dijon judgment declares that products legally manufactured and marketed in one Member State according to that country's fair, traditional rules and manufacturing procedures should be allowed in any other Member States' market. The absence of harmonization resulted in a discussion concerning mutual recognition.

Selling arrangements that are nondiscriminatory fall outside the scope of Article 34 of the TFEU, according to Keck. Article 34 of the TFEU applies to all marketers within the country and affects foreign and domestic products' marketing similarly, both legally and practically.

In the Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein 1979 case, the Court of Justice recognized that Member States might have exemptions to prohibiting measures that have equivalent effects if they meet mandatory requirements. Several aspects related to fiscal supervision, public health, fair trading, and consumer protection require attention. The Member States have a responsibility to inform the Commission about their national exemption measures. To make the supervision of these measures easier, the Member States introduced information exchange procedures and monitoring mechanisms. Regulation (EC) No 764/2008 on mutual recognition formalized this principle under the New Legislative Framework adopted in 2008.

In addition, Article 114 and Article 117 of the TFEU, Judgment 3052/95/EC of the European Parliament and of the Council, and Council Regulation (EC) No 2679/98 further contribute to the protection of consumer rights and fair trading in the EU. In cases like Criminal Proceedings against Bernard Keck and Daniel Mithouard 1993 and Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein 1979, the court has ruled in favor of fair competition to safeguard the interests of all parties.

The De Peijper case, Visnapuu case, Commission v Italy case, Commission v Germany case, van der Veldt case, Decker case, ANETT case, Canal Digital case, Kakavetsos-Fragkopoulos case, and Berlington Hungary case are other examples of the court's rulings on fair trade practices and consumer protection in the EU.

References:

- Treaty on the Functioning of the European Union - TFEU >> WBC-RTI.INFO - Western Balkan Countries Research Technology Innovation

- Document 02016E/TXT-20200301

- De Vries, S. (2012). Consumer protection and the EU single market rules – the search for the ‘Paradigm Consumer’. Journal of European Consumer and Market Law, 1, 228.