Free Movement of Goods

Article 26 TFEU

1. The EU can makes laws to create and maitain the internal market

2. Internal market means no internal borders with free movement of goods, people, services and money

3. The council sets the overall direction and conditions to make sure this develops fairly

Article 114 TFEU

To make the internal market work, the EU can harmonise (align) national laws across Member States. This is done by the European Parliament and the Council of the European Union using the ordinary legislative procedure, after consultation.

What is the effect of Article 114

- gives the European Parliament/Council the competence to act

- Allows EU legislators to harmonise to achieve the internal market

Article 34 TFEU

Quantitative restrictions on imports and all measures having an equivalent effect shall be prohibited between member states

Article 36 TFEU

Countries can restrict trade (imports/exports) for valid reasons like:

- public health or safety

- public policy or morality

- protecting the environment, animals, or national treasures

- protecting intellectual property

But they must not use these reasons as an excuse to unfairly block trade or discriminate between countries

What are the 2 stages of Article 36

1. Is there a trade barrier?

2. Is there a valid public interest justification?

Proceur du Roi v Dassonvile

facts: Belgian law required a certificate of origin form the country Whisky came from, a French business struggled to get this certificate

decision: All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.

Only under very exceptional circumstances could the member state plead a domestic justification which would allow the legislation to survive

Modern European states

define themselves as welfare states - the Dassonville formula is bad for the welfare states, as any welfare legislation may be considered a barrier to trade

Cassis de Dijon

facts: Germany did want to market a wine because the alcoholic content was too low and would increase alcohol tolerance

decision: this was a trade barrier There is only a valid public interest justification if it falls under the ones listed in Article 36, however, MS are allowed to plead mandatory requirements, which are legitimate public interests not listed under Article 36

the Principle of Mutual Recognition

host state = Germany

home state = France

- When there is no legal harmonisation, host states can regulate as long as there is a valid public interest justification

- if there is no valid public interest justification, the home state's regulatory regime takes primacy

Can we freely pick and choose between Article 36 and mandatory requirements?

No, because there is a difference between indistinctly applicable measures and distinctly applicable measures

indistinctly applicable

indirectly discriminatory measures — considered under the Cassis de Dijon

distinctly applicable

directly discriminatory measures — considered under the much narrower principles of Article 36

Strategic litigation

arguing a law you do not like in your country is a measure having an equivalent effect, even though there is no real concern about the common market

Keck formula on selling arrangements

If a measure is not about products themselves but is merely a selling arrangement, then that measure does not fall under the Dassonville formula

selling arrangement

A selling arrangement is a measure involving the advertising of products/the way products are sold

Gourmet: the market access test

facts: The Swedish government wanted to protect against too much alcohol consumption, so it introduced a ban on alcohol advertising, a UK importer argued this is a measure having an equivalent effect

decision: market access test: does the measure make market access harder for a foreign trader compared to a domestic trader

what is the public interest in the Gourmet case

proportionality - This calls for a precise analysis of the Swedish situation, which is something for the national courts to do

Commission v Italy

facts: Italy changed its traffic code to prohibit motorbike trailers but had not banned them

decision: this was a measure having an equivalent effect as the prohibition on the use of a product influences consumers

Åklagaren v Mickelsson, Roos

facts: Swedish govt banned high-speed motorboats use for their intended purpose due to noise pollution, but you could still purchase them

decision: this was a measure having an equivalent effect