Judgment_paragraph 2.3. · 206/80

2.3.Even if “in all absurdity” Article 104 proved insufficient to exclude the question from the scope of Articles 30 and 13 of the Treaty, its exclusion must then follow from Article 36.Indeed, that article allows measures to hinder the free movement of goods where such measures are justified in particular on grounds of public policy and do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member Sutes. The concept of public policy, as the Court stated in its judgment of 23 November 1978 (Case 7/78 Regina v Thompson [1978] ECR 2247), concerns the fundamental interests of the Sute.Furthermore, even on that assumption, the national provisions in question are justified by requirements for the protection of public policy, since those measures, which are of a moneury nature, must be regarded as involving fundamenul interests of the Iulian Sute. Moreover, the rules do not constitute a means of arbitrary discrimination — because all imports come within their scope — or a disguised restriction on trade between Member Sutes — because they cover not the act of importation itself but a different act, namely the improper performance of the obligation to import within a specified period; on the contrary, they are necessary and appropriate for the atuinment of the required objective.Thus, not only do the national provisions in question not constitute a quantiutive restriction on free movement, they do not constitute a measure having equivalent effect either. In fact, even if the atypical consequence of the measures was that they caused quantitative restrictions on trade, they would nevertheless not be contrary to Article 30 of the Treaty, first on account of the fact that they apply in a sphere which is different from that of trade in goods between Member Sutes and secondly because they do not exceed the limits of what is necessary and appropriate in order to achieve the objective pursued by the provision: that objective, consisting in the safeguarding of the Sute's interest in the equilibrium of its balance of payments, would not be atuinable in the absence of any mandatory measure such as that in question.

Orlandi Italo e Figlio and others v Ministry of Foreign Trade (206/80, 207/80, 209/80, 210/80)

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