Opinion of the Economic and Social Committee on the 'Proposal for a Council Regulation (EC) creating a mechanism whereby the Commission can intervene in order to remove certain obstacles to trade'
Date: 1998-04-29
Institutions: European Economic and Social Committee
Subjects: application of EU law, free movement of goods, single market, trade restriction

C 214/90

EN

Official Journal of the European Communities

10.7.98

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Regulation
(EC) creating a mechanism whereby the Commission can intervene in order to remove certain
obstacles to trade’

(98/C 214/24)

On 2 February 1998 the Council decided to consult the Economic and Social Committee,
under Article 198 of the Treaty establishing the European Community, on the above-mentioned
proposal.

The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 1 April 1998. The rapporteur
was Mr Green and the co-rapporteur Mr Schmitz.

At its 354th plenary session (meeting of 29 April 1998), the Economic and Social Committee
adopted the following opinion by 93 votes in favour and 15 votes against, with 10 abstentions.

1. Background: the Commission proposal

national courts with a view either to removing the
obstacle or to obtaining compensation.

1.1. On several occasions obstacles to the free move-
ment of goods have arisen, directed against individuals
and enterprises from other Member States.

2. General comments

1.2.
The Amsterdam European Council called on the
Commission ‘to examine ways and means of guarantee-
ing in an effective manner the free movement of goods,
including the possibility of imposing sanctions on
the Member States’. The Council also requested the
Commission to ‘submit relevant proposals before its
next meeting in December 1997.’

2.1.
The ESC is in favour of ensuring free movement
of goods within the internal market. Hence it welcomes
speedier intervention against illegal obstacles to trade;
at present, action in cases covered by Treaty Article 169
normally takes 4-5 years.

Nevertheless, the Committee is unable to support the
proposal in its present form.

The legal basis specified in this Commission

1.3.
proposal is Treaty Article 235.

2.1.1. L e g a l b a s i s

The proposal encompasses obstacles to free
1.4.
movement of goods resulting from a Member State’s
action or inaction.

For the purpose of the proposed regulation,
1.5.
obstacles must be ‘clear, unmistakable and unjustified’.
In addition, they must involve grave disruption to free
movement of goods, cause serious loss to the individuals
affected and require immediate intervention in order to
prevent any continuation, extension or aggravation of
the disruption or loss.

1.6. Within the meaning of the proposal, inaction
exists when the Member State concerned refrains from
implementing any measure necessary and proportionate
to the nature of the infringement so as to safeguard the
free movement of goods without affecting the exercise
of fundamental rights recognized under national law.

The proposed procedure is guided by the Treaty

1.7.
rules governing state aids.

1.8. Owing to the binding force of this Commission
Decision, injured parties will be able to invoke it in the

In the ESC’s view, the Commission — in conjunction
with the Member States — should frame arrangements
to make prompt use of the procedure provided for in
Treaty Article 169, especially in cases of obstacles to
trade requiring a speedy solution, instead of opting for
Article 235 as legal basis. Article 235 should not be used,
purely and simply because of its subsidiary nature. Here
the ESC would point out that Treaty Article 186
authorizes the European Court of Justice to prescribe
interim measures.

2.1.2. R e s t r i c t i o n o f
d i r e c t i v e
o f g o o d s

t o t h e

t h e

s c o p e o f

t h e
f r e e m o v e m e n t

The ESC wonders why the proposal focuses only on the
free movement of goods and does not encompass the
other three internal market freedoms — services, capital
and persons.

2.1.3. T i m e - l i m i t s

In the ESC’s opinion, the time-limits proposed by the
Commission for a response by the Member States are
unrealistic, especially in the case of countries with
federal systems.

10.7.98

EN

Official Journal of the European Communities

C 214/91

2.1.4. B a s i c s o c i a l r i g h t s

Under no circumstances must the intervention mechan-
ism proposed by the Commission to ensure free move-
ment of goods lead to action on labour disputes.
Problems would arise if the Court of Justice were to be
required to rule on the legitimacy of labour disputes,
thereby encroaching on national legal systems. That
would be at odds with the subsidiarity principle.

It must therefore be made clear that,

2.1.4.1.
in
assessing a measure which threatens free movement of
goods, consideration must first be given to the special
scope of Community legislation (in particular Treaty
Article 36). Outside these limits, legal questions relating
to labour disputes should be assessed solely on the basis
of national provisions and by national authorities and
courts.

2.1.5. E u r o p e a n C o u r t o f J u s t i c e

The Commission obviously lays great store by the Court
of Justice’s rulings. Nonetheless, the ESC questions
whether the Commission’s preparatory work can be
speeded up sufficiently to allow interim measures to be
prescribed with due speed.

3. Conclusions and proposals

of curbing Member States who impede free movement
through their action or inaction.

3.2. However, the ESC is unable to support the
proposal in its present form since the Treaty does not
authorize the powers envisaged for the Commission.
The ESC is also critical on grounds of uncertainty as to
the proposal’s scope.

3.3.
In view of the problems connected with this
proposal and the disapproving stance of the Council (1),
the ESC urges that the Commission intervention mecha-
nism should be an option only when a Member State
can be shown to be treating EU citizens or enterprises
differently on grounds of nationality. The Commission
should take Treaty Articles 6, 7A and 5, along with
Treaty Articles 169 and 186, as a guide in developing a
new legal basis for the intended intervention mechanism.
Such an approach would also make it easier to include
the three other internal market freedoms of movement:
services, capital and persons.

The ESC proposes that the Commission publish
3.4.
a Communication reporting on the current state of
affairs, the case law of the European Court of Justice
and options for developing an intervention mechanism
for situations such as those where a Member State treats
EU citizens or enterprises differently on grounds of
nationality.

3.1.
The ESC supports free movement of goods and
therefore advocates a speedier and more effective way

(1) Single Market Council of 30 March 1998, 6875/98 —

MINUTES/CCIL 16- MI 19.

Brussels, 29 April 1998.

The President

of the Economic and Social Committee

Tom JENKINS