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The European Union is an organisation which requires its member states:

  1. Not to carry out any customs checks on any goods travelling directly from one member state to another member state

  2. To carry out customs checks on any goods coming into the member state from a "third state" (i.e. from a country which is not a member of the EU).

  3. The checks which a member state is required to carry out under (2) above are (a) checks for conformity of goods to EU regulations (b) collection of tariffs which the EU imposes on the import of third state goods.

Is there any historical precedent where a member state have been, in the opinion of the EU Commission, insufficiently thorough in carrying out the checks in 3 above (perhaps because of a land border which is difficult to police, or because of a cultural sensitivity such as where the third state, of part of it, has historically been part of the member state and is viewed as part of a cultural continuum, or for any other reason, practical or political/cultural) and the EU Commission has ordered the "quarantining" of the member state - i.e. imposing checks on goods travelling from that member state to other member states (i.e. checks which would not normally be allowed under 1 above)?

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  • That would be a "nuclear option". More common would be try solve it through EU courts first politico.eu/article/… That's because failing to collect import fees or VAT would deprive some other member state of some money, so that's a reason to sue to recover damages.
    – Fizz
    Nov 10, 2021 at 17:48
  • Finanvial fines are the first choice like this. theguardian.com/world/2017/mar/08/…
    – Jontia
    Nov 11, 2021 at 8:24
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    The EEC dates to 1951. The EU dates to 1992. There isn't a whole lot of history to invoke.
    – ohwilleke ♦
    Nov 12, 2021 at 22:12

1 Answer 1

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In such a scenario, the Commission's recourse is to launch infringement proceedings. It has done that in the past to force national customs administrations to collect duties or change their interpretation of some rules. On the other hand, I don't see any legal basis for any quarantining or similar measures.

In fact, as far as I can tell, the treaties do not exactly forbid any checks whatsoever (enforcement of the few restrictions that do remain, e.g. on alcohol, does happen). Instead, what's forbidden are charges or quantitative restrictions and the measure you propose would fall under that.

Article 36 TFEU does create an exception “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.” To the extent that a lack of enforcement would create a health risk, it could conceivably be invoked (presumably by other member states rather than by the Commission).

Note that even when member states are at odds between themselves or with the Commission, they have seldom challenged the core functioning of the single market. Even the developing conflict between the Commission and Poland or Hungary on rule of law or human rights issues doesn't really encroach on that.

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  • If infringement proceedings are commenced by the Commission is there any procedure to apply for an interim order? For example, if the UK reduced the checks on goods going into Northern Ireland (using Art 16 of the Protocol, say) and the Commission in consequence required Ireland to carry out customs checks at the land border, and if Ireland refused to do so, could the Commission get an immediate order from the CJEU requiring Ireland to do so, or would infringement proceedings against Ireland just proceed in the normal slow way awaiting a court hearing in a couple of years?
    – Nemo
    Nov 10, 2021 at 16:27
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    @Nemo I don't think there is any procedure for the Commission to take such measures itself. What it can do instead is ask the CJEU for interim measures. That's what happened recently in two cases concerning Poland (one of them is with the Czech Republic, with no Commission involvement). Poland has been ordered to pay €500k a day until the final judgment on its Turów lignite mine and €1M a day until the final judgment on its supreme court.
    – Relaxed
    Nov 10, 2021 at 16:39
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    Incidentally, I suspected you might have Ireland in mind and in this case I think we are very far in fiction territory. The Commission is working with Ireland and very keen to appear to be coordinating closely and supporting the country in any way it can. It would also be wary of any suggestion that it is flaming inter-communal violence or threatening the Good Friday agreement. Everybody remembers the blowback after the mere suggestion it could use article 16 over vaccine supplies. It therefore seems extremely unlikely to me that the Commission would seek to force Ireland to do anything.
    – Relaxed
    Nov 10, 2021 at 16:42
  • Politico said in the summer that its sources indicated then that the idea was being considered in Brussels. politico.eu/article/…
    – Nemo
    Nov 11, 2021 at 11:57
  • @Nemo I read it a bit differently. Politico doesn't say it's coming from the Commission, it doesn't even clearly say whether it's being seriously considered. It's also quoting a diplomat who hadn't heard of the plan, which implies it hasn't been formally discussed in the COREPER, let alone in the Council. In fact, that article seems based mostly on accounts by Irish officials, who accuse France of floating the idea (which it might very well have). As I wrote in my answer, I can see a scenario where other member states would go down that route but I would be surprised if the Commission does.
    – Relaxed
    Nov 11, 2021 at 23:32

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