Free movement of goods and the derogation allowed for the protection of national treasures

Free trade in all goods is a guiding principle of the EU, guaranteed by the Treaty on the Functioning of the European Union (TFEU). Article 30 TFEU prohibits customs duties on imports and exports and charges having equivalent effect between member states, while Articles 34 and 35 TFEU prohibit quantitative restrictions on imports and exports respectively and all measures having equivalent effect. It has been recognised all along, however, that the free movement of goods should be reconciled with the protection of the cultural and artistic heritage of the member states. Hence, according to Article 36 TFEU,

the provisions of articles 34 and 35 of the Treaty shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of... the protection of national treasures possessing artistic, historic or archaeological value____Such prohibitions or

restrictions shall not... constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

The Court of Justice of the European Union (CJEU, former European Court of Justice, ECJ) has repeatedly held that any derogation from a Treaty freedom needs to be interpreted narrowly. The purpose of Article 36 TFEU is not to reserve certain fields to the exclusive jurisdiction of the member states; its aim is to allow the national legal systems to derogate from the free movement of goods to achieve the objectives set out in Article 36 TFEU, provided that the measures taken do not constitute a means of arbitrary discrimination, nor a disguised trade restriction and that they are in compliance with the principle of proportionality, meaning that they are no more restrictive than is strictly necessary to achieve their intended objective (Craig and De Burca, 2008: 668). As the CJEU explained in Commission v. Belgium, 'measures are justified only if it is established that they are necessary in order to attain the objective of protection referred to in Article 36 and that such protection cannot be achieved by means which place less of a restriction on the free movement of goods within the [Union]'.1

Recourse to Article 36 TFEU is no longer justified where EU rules (e.g. enactment of Directives) provide for the full harmonisation of the measures necessary for the protection of the fields mentioned in Article 36 TFEU (Steiner, Woods and Watson, 2012: 341). Where, however, harmonisation is not complete, and this is the case with the protection of national treasures, member states may continue to rely on Article 36 TFEU. In this case, member states are permitted to 'maintain and often to introduce more stringent regulatory standards than those prescribed by [Union] legislation, for the purposes of advancing a particular social or welfare interest, and provided that such additional requirements are compatible with the Treaty' (Dougan, 2000: 855). In any case, the burden to prove the consistency of national legislation with Article 36 TFEU lies on the national authorities. As the CJEU stated in Leendertvan Bennekom, 'it is for the national authorities to demonstrate in each case that their rules are necessary to give effective protection to the interests referred to in Article 36 of the Treaty'.2

CJEU case law on the protection of national treasures possessing artistic, historic or archaeological value is truly very limited. In Commission v. Italy, one of the few cases pertaining to the protection of national treasures, the CJEU rejected the claim of Italy that the export tax on works of art was a protective measure falling within the ambit of the derogations allowed by Article 36 TFEU. The CJEU stated that the tax had 'the sole effect of rendering more onerous the exportation' of works of art 'without ensuring attainment of the aim intended by article [36 TFEU], which is to protect the artistic, historical or archaeological heritage'.3 In this case, the CJEU clarified that the scope of the derogation of Article 36 TFEU does not justify charges under Article 30 TFEU. The imposition of quantitative restrictions may thus be the only permitted way to protect national treasures. This was, in fact, acknowledged by the French Conseil d'Etat (the French highest administrative court), which in its Genty judgement of 7 October 1987 ruled that French legislation prohibiting the export of cultural objects was justified on the ground of Article 36 TFEU, thereby affirming that the refusal of the administration to issue an export permit for certain Chinese jars was compatible with EU law,4 without asking the CJEU to interpret the relevant provisions (Kaczorowska, 2013: 576).

In a more recent case, Austria tried to justify its national legislation, which provided that the publisher or importer of books in the German language could not fix a price below the retail price in the state of publication, as a derogation grounded on the protection of books as cultural objects.5 The LIBRO company advertised books published in Germany for sale in Austria at prices which were lower than the minimum set on the basis of German prices and were, therefore, in breach of Austrian law. The Court of First Instance and the Appeal Court in Austria held that, even if the Austrian binding price scheme constituted a restriction on the free movement of goods, it was justified for cultural reasons under Article 36 TFEU. However, when the question of compatibility of the Austrian provisions at issue with Union law was referred to the CJEU by the Austrian Supreme Court, it was held that the Austrian legislation constituted a hindrance to the free movement of goods (more specifically, a measure having equivalent effect to quantitative restrictions), which could not be justified under Union law. The CJEU argued that the protection of books as cultural objects could be considered as an overriding requirement in the public interest capable of justifying measures restricting the free movement of goods. However, it is necessary that such measures are appropriate for achieving the objective pursued and that they do not go beyond what is necessary to achieve it. The CJEU held in this case that the objective at hand could have been achieved by less restrictive measures and that the measures under scrutiny were, therefore, not proportional to the intended objective. Consequently, they could not be justified under Union law.

The limited number of cases dealt with by the CJEU does not allow the drawing of any safe conclusions regarding the way in which the CJEU approaches the balance between market freedom (free movement of goods) and market externality (protection of national treasures possessing artistic, historic or archaeological value). Will the CJEU in future cases place a heavier evidential burden on member states to prove their case for a derogation, or will it allow the notion of a national margin of appreciation to become central in the field of protection? (Chalmers, Davies and Monti, 2014: 872). What is clear at this point is that the national courts may be more open than the CJEU to accepting the validity of a derogation on grounds of the protection of national treasures. Notably, the final outcome of a case may very well depend upon the willingness of the national court to make (or not) a reference for a preliminary ruling to the CJEU (as seen above, the French Conseil d'Etat did not make such a reference in its Genty judgement). True, it is a prerogative of every member state to decide which cultural objects can be classified as 'national treasures'. The ultimate arbiter, however, of whether a certain measure is compatible with EU law is the CJEU. It is to be expected, owing to its role so far in the development of the Union legal system, that the CJEU, when deciding upon the proportionality of a measure in derogation of EU law, may privilege the common good of the EU (and, hence, the free movement of goods) versus the national public interest. Right now this is only a tentative hypothesis that needs to be further tested.

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