Short answer
A Member State may restrict trade in goods with another Member State only within a disciplined EU-law framework. The first question is whether EU legislation has harmonised the relevant product, risk or control. If it has done so exhaustively, the national measure must comply with that legislation and any safeguard procedure; a State cannot bypass the common rules by relying directly on a broad national interest.
Where the Treaty rules apply, Article 34 TFEU prohibits import restrictions and measures having equivalent effect. Article 35 does the same for exports, though its judicial test is more specific. Article 36 grounds include public morality and human, animal or plant health. The Court also recognises overriding requirements, including consumer and environmental protection.
Naming a legitimate objective is only the start. The State must show that the measure genuinely pursues it, is suitable to achieve it, is applied consistently, and does not go beyond what is necessary. Less restrictive, equally effective options matter. The measure must not arbitrarily discriminate against imported or exported goods or disguise economic protectionism.
Start with EU harmonisation, not the exception
National authorities should first identify any applicable regulation, directive or decision. EU product rules may prescribe safety checks, labels, authorisations or market controls and may contain a specific safeguard procedure.
The Court of Justice stated in Case C-573/12, Ålands Vindkraft, that where EU law has exhaustively harmonised a matter, a related national measure is assessed under the harmonising measure rather than primary EU law. The Court then found that the renewable-energy directive before it had not exhaustively harmonised national support schemes, so Article 34 TFEU still had work to do. The lesson is practical: determine the precise subject covered by EU legislation instead of assuming that the existence of an EU act either permits or excludes national action.
If the relevant issue is not exhaustively harmonised, Articles 34–36 provide the general framework. Article 34 covers import quotas and other national rules capable of hindering intra-EU imports. Article 35 covers export quotas and measures whose object or effect is specifically to restrict export patterns or whose actual burden is greater on goods leaving the national market.
Which objectives can justify a restriction?
Article 36 lists the Treaty derogations. Its final sentence is as important as its list:
“The provisions of Articles 34 and 35 shall not preclude 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. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”
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Those grounds are exhaustive. “Public interest” does not let a State add a new Article 36 category. But the Court's Cassis de Dijon line of case law recognises overriding requirements where common EU rules are absent. In Case 120/78, Rewe-Zentral—usually called Cassis de Dijon—the Court identified matters such as effective fiscal supervision, public health, fairness of commercial transactions and consumer protection. Later judgments recognise environmental protection.
Article 36 can in principle justify a measure that differentiates by origin, subject to strict control. Overriding requirements normally justify rules applying without distinction. Proportionality and the anti-protectionism rule remain central.
Public health: the protection level is national, but the means are controlled
A Member State may choose its level of health protection, but not any precaution or administrative requirement. It must identify the risk and show why a less restrictive control would not protect health as effectively.
In Case 104/75, De Peijper, national rules made a parallel importer of a medicinal product produce documents that the authority already held. The Court accepted the importance of human health but imposed a necessity test:
“Nevertheless it emerges from Article 36 that national rules or practices which do restrict imports of pharmaceutical products or are capable of doing so are only compatible with the Treaty to the extent to which they are necessary for the effective protection of health and life of humans.”
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The Court held that Article 36 cannot support a restriction where health can be protected just as effectively by measures that impede trade less. Administrative convenience or lower public expenditure is not ordinarily enough. A modern assessment must also check the sector's current EU authorisation and safety regime before transferring that older Treaty analysis to today's product.
Public morality: national values still require even-handed enforcement
Public morality allows genuine differences between Member States, but it cannot be a label for favouring domestic goods. In Case 34/79, Henn and Darby, the Court said that, in principle, each Member State may determine the requirements of public morality according to its own scale of values. It accepted an import prohibition where, viewed as a whole, there was no lawful domestic trade in the same obscene goods.
Case 121/85, Conegate, shows the other side. A Member State could not prohibit imports on morality grounds while the same goods could be freely manufactured domestically and marketed subject only to limited controls. The inconsistency showed that the alleged concern was not pursued through serious and effective domestic measures. Relevant comparisons therefore include domestic manufacture, sale, licensing, age limits and enforcement—not merely the wording of the customs rule.
Consumer and environmental protection: legitimate aims, tailored measures
Consumer protection is an overriding requirement, not an Article 36 ground. Information, labelling, verification or a targeted right of withdrawal may be adequate alternatives to a market ban.
Case C-205/07, Gysbrechts, concerned Belgian distance-selling rules that burdened cross-border sales more heavily and therefore restricted exports. The Court set out the justification test:
“A national measure contrary to Article 29 EC may be justified on one of the grounds stated in Article 30 EC, and by overriding requirements of public interest, provided that the measure is proportionate to the legitimate objective pursued.”
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The former Articles 29 and 30 EC correspond to today's Articles 35 and 36 TFEU. The Court accepted a ban on requiring payment before the withdrawal period expired, but found that preventing a supplier even from requesting a payment-card number went beyond what was necessary. One consumer objective thus produced different results for two related controls.
Environmental protection follows the same need for tailoring. In Case C-302/86, Commission v Denmark, requiring a deposit-and-return system for drinks containers was capable of being justified. A quantitative limit on drinks sold in non-approved containers was not:
“Nevertheless, the system for returning non-approved containers is capable of protecting the environment and, as far as imports are concerned, affects only limited quantities of beverages compared with the quantity of beverages consumed in Denmark owing to the restrictive effect which the requirement that containers should be returnable has on imports. In those circumstances, a restriction of the quantity of products which may be marketed by importers is disproportionate to the objective pursued.”
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The judgment did not reject the environmental policy. It separated the necessary return system from an excessive sales cap. That is the proportionality inquiry in concrete form.
A practical test for a proposed restriction
Before adopting or challenging an import or export restriction, ask:
- Is this intra-EU trade in goods? Identify the product, origin, destination and barrier.
- What has EU law harmonised? Check the current act, application dates, safeguards and notification duties.
- Which Treaty rule applies? Distinguish an import measure under Article 34 from an export measure under Article 35.
- What is the exact objective? Link it to Article 36 or a recognised overriding requirement; avoid vague public-interest claims.
- What evidence supports the risk? Explain how the control advances the chosen protection level.
- Is it suitable and necessary? Test labels, inspections, recognition of equivalent controls, licences, targeted limits and other less restrictive options.
- Is the policy coherent? Compare domestic and cross-border goods and examine exemptions and enforcement in practice.
- Does it conceal protectionism? A measure cannot use health, morality, consumers or the environment as cover for shielding domestic production.
The answer is product-specific: a deposit system may be justified while an accompanying volume cap is not.
Conclusion
A Member State may restrict imports or exports to protect interests recognised by EU law, but it must operate inside the applicable harmonised regime and the free-movement rules. Article 36 permits specified grounds such as public morality and human, animal or plant health. Case law also recognises overriding requirements including consumer and environmental protection.
The decisive issue is rarely whether the stated aim sounds important. It is whether the national rule genuinely and consistently advances that aim, treats comparable domestic and cross-border goods fairly, and uses no more trade restriction than necessary. The applicable EU product rules, evidence of risk and realistic less restrictive alternatives will usually determine the result.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.