I. Introduction
This case has been submitted by the Austrian court for a preliminary reference to the Court of Justice of the European Union (CJEU) on the issue relating to Article 34 of the TFEU.
A new Austrian law banning the import of meat and meat-based products from Germany has been introduced. This Austrian law has come from the outbreak of avian influenza on poultry farms in Bavaria, in southern Germany, banning the import of meat and meat-based products from Germany.
A disgruntled customer Paula, who can no longer purchase Rouladen, the traditional German food, wants to bring a judicial review (JR) action in Austrian courts to challenge Austria’s import ban as she believes that it violates the principles of the free movement of goods.
In this opinion, I will consider if the Austrian law violates the principles of the Free Movement of Goods, especially in relation to Article 34 of the Treaty on the Functioning of the European Union (TFEU).
II. Relevant law
Quantitative restrictions (QRs) relate to the use of quotas and bans on certain products by member states (MS). These QRs between MSs are prohibited on imports and exports of goods through articles 34 and 35 TFEU.
In relation to the question of does the Austrian law violates the principles of the free movement of goods we need to establish the definition of good to assess whether Rouladen can be classified as a ‘good’. A key case that establishes the definition of a ‘good’ is the Commission v Italy case. The court states, “all products which can be valued in money, and can therefore be the subject of commercial transactions, are ‘goods’”.
However, Article 36 TFEU gives MSs the ability to take measures “having effect to quantitative restrictions” when they are considered “justifiable” from the list established in the article.
III. Compatibility of the Austrian law in relation to Article 34 TFEU
In the case at hand, it is important to establish that Rouladen, the traditional German food is classified as a ‘good’. As previously mentioned in paragraph (6), the definition of a ‘good’ is established in the case Commission v Italy. Therefore, the Rouladen can be classified as a ‘good’, and therefore, Article 34 applies to the case.
Before looking at any justifications, Article 34 applies. The new Austrian law banning the import of meat and meat-based products from Germany meets the requirement of being a QR as it is an outright ban on imports. A key case in relation to QRs is Geddo v Ente Nazionale Risi as the definition of a QR is firmly established and the ban on prohibitions of imports and exports, “the prohibition on quantitative restrictions covers measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit”.
Therefore, before the consideration of justifications, I would assert that the Austrian law would be incompatible with Article 34 TFEU.
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IV. Justifications of the Austrian law in relation to Article 36 TFEU
As previously mentioned in paragraph (7) Article 36 TFEU provides a list of justifications that are viewed as permissible QRs. In relation to the case at hand, the basis for the introduction of the Austrian law, banning meat-based products, is that there has been an outbreak of avian influenza on poultry farms in Germany. Therefore, banning the import of meat-based products could be classified as justifiable under Article 36 as it states, “prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.”
Justification for the introduction of the new Austrian law could fall under the category of “protection of the health and life of humans”. The outbreak of avian influenza on poultry farms is a health hazard for the public causing serious illness. Therefore, it could be justifiable under Article 36. However, when examining further, I would argue that the justification is not strong enough the employ the restrictions of banning the import of meat-based products from Germany.
V. Proportionality of Austrian law in relation to justifications under Article 36 TFEU
A proportionality test can be used to measure the restriction (banning meat-based products) against the justification (public health). This proportionality test is a balancing exercise between restriction and justification. Proportionality tests apply to all justifications under Article 36 TFEU and conclude if the restriction in place is effective in meeting the justified ends. Further, it questions if the restriction is necessary and least restrictive out of potential options.
As previously mentioned in paragraphs (12) and (13) there are justifications provided which allow QRs. However, in this case, the justification of “the protection of public health” can be argued as arbitrary discrimination against German imports of Rouladen.
The introduction of the Austrian law banning all meat-based products from Germany has established the outbreak of avian influenza on poultry farms. This raises questions about the motives behind the introduction of Austrian law. Avian influenza is primarily seen in birds giving it the commonly known name of “bird flu”. The traditional German food, Rouladen is made from beef, bacon, pickles, onions, mustard, and wine. None of these ingredients come from poultry farms therefore Austria should not be banning meat-based products.
Article 36 TFEU also states, “Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”. The banning of meat-based products from Germany can be classified as arbitrary discrimination as it is banning meat-based products rather than poultry products imported from Germany. Further, the introduction of the Austrian law can be classified as a disguised restriction as now, with Rouladen no longer available from local supermarkets in Oberndorf, the sales of the locally Austrian-made beef schnitzel have rocketed. Therefore, it can be argued, that banning the import of meat-based products can be classified as arbitrary discrimination and a disguised restriction to help boost the sales of the locally-made Austrian schnitzel.
An example of a disguised restriction can be seen in the case Commission v UK. The UK introduced a ban on poultry imports from France on the grounds of the protection of public health. However, there had not been an outbreak of the disease in relation to the poultry and the ban was not justified under Article 36 TFEU. The court stated, “these facts are sufficient to establish that the 1981 measures constitute a disguised restriction.”
In my opinion, using the proportionality test, Article 36, and the case law Commission v UK the restriction of banning the import of meat-based products from Germany is not justifiable under Article 36 in relation to the protection of public health. Further, the scope of the ban must be identified as to how long it could potentially last and are they any alternatives.
VI. Conclusion
Overall, when examining the compatibility of the Austrian law in relation to Article 34 TFEU it is clear that the law is incompatible with this Article. The Austrian law is incompatible with Article 36 TFEU as the article simply states that QRs are prohibited by MS. This Article is straightforward in prohibiting this and therefore it is easy to establish the Austrian law as incompatible.
When further assessing the compatibility of the Austrian law with Article 34 TFEU it is important to note the justifications under Article 36 TFEU as they are closely linked. However, when carrying out the proportionality test and following case law, it is easy to determine, again, that the Austrian law will not be compatible with Article 36 TFEU under the classification of protecting public health, and in turn, this leads to the incompatibility of the Austrian law in relation to Article 34 TFEU.
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