Critically discuss the extent to which EU legislation and the case law of the Court of Justice ensure the free movement of goods in the internal market.
The free movement provisions, including those
of the free movement of goods, were part of a larger scheme through which the
European Union’s free market was established. The free market was a project
that was envisaged as part of a way of strengthening a Europe that had been
broken apart by reason of extreme warfare.[1]
However, in a Europe no longer as threatened by internal wars as it once was,
the matter is now of a pure economic basis.
Articles 28 and 34 Treaty on the Functioning
of the European Union (TFEU) are the main governing articles which preside over
the free movement of goods. Article 28 provides that:
“The
Union shall comprise a customs union which shall cover all trade in goods and
which shall involve the prohibition between Member States of customs duties on
imports and exports and of all charges having equivalent effect, and the
adoption of a common customs tariff in their relations with third countries.”
Article 34 holds:
“Quantitative
restrictions on imports and all measures having equivalent effect shall be
prohibited between Member States.”
As is often the case with legislation, what
exactly constitutes a quantitative restriction or measure of equivalent effect
has been left to be decided by the ECJ. The first case to consider in this
respect is that of Cassis de Dijon,[2]
a case involving the technical standards through which the German
government would only recognise and allow certain alcohol if it was above 25%
alcohol content. It was held in this case that even though the measure was not
discriminatory as it applied to both domestic and international goods it was
nonetheless prohibited. The case has been criticised on the grounds that there
was no element of discrimination and a legitimate expectation to protect the
domestic consumers from lower quality foreign products has been undermined by
this overreaching approach.[3]
This criticism did not go unnoticed and, in
the case of Keck,[4]
the ECJ sought to distinguish matters that were not quantitative restrictions
but instead measures of equivalent effect.
The case involved the selling of beer and coffee at prices lower than
the purchase price, something the WTO would term “dumping” and hold as unlawful
on the grounds that it harms domestic producers,[5]
however, it was held in the case of Keck that these measures were in fact
lawful as they were not quantitative restrictions but selling arrangements.
This case too has received criticism. It has been argued that this is now too
lenient in comparison to the overly invasive approach in Cassis de Dijon.[6]
The ECJ refrains from exercising Keck in
modern cases and has instead chosen to make use of the market access formula –
as established Mickelsson.[7] This formula considers whether a
measure is discriminatory and whether it impedes access to the market.
[1] Mark
Anthony Martinez, The myth of the free
market: the role of the state in a capitalist economy, (Kumarian Press,
2009), 164.
[2] Case
C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein ECR 649.
[3]
Simon Weatherill, ‘Recent Case Law Concerning the Free Movement of Goods:
Mapping the Frontiers of Market Deregulation’, (1999) 36 C.M.L.Rev. 51, 52.
[4]
Joined Cases C-267-268/91 Keck [1993]
ECR I-6097.
[5] Konstantinos
Adamantopoulos, and Diego De Notaris. ‘Future of the WTO and the Reform of the
Anti-Dumping Agreement: A Legal Perspective, The.’ Fordham Int'l LJ 24 (2000):
30.
[6]
Weatherill, S. (1999). Fn.3.
[7]
Case C-110/05 Mickelsson [2009] ECR
I-4273.
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