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  • Matthew Tweddell

EU Member State regulation and the free movement of goods

The single market is at the core of the EU’s legal, economic and political conception, holding the free movement of ‘goods’, a term referring to anything of economic value, as a constitutional element.[1] Article 34 TFEU is integral in the pursuit of achieving a single market, prohibiting the adoption of measures that affect intra-EU trade of imported goods.[2] Yet, it provides merely a framework for this freedom to exist in, leaving the substantive elements of the law to the jurisprudence of the European Court of Justice (ECJ), in an effort to achieve the single market.

The scantness of not only Article 34 but the treaties in general has left the ECJ in a dynamic position, compelling them to adopt a teleological approach.[3] With regards to the free movement of goods, they have, therefore, ruled in an effort to propel this area to achieve the single market, as opposed to statically govern its boundaries. To consider the ECJ successful in this pursuit, they must demonstrate a fair adjudication upon legitimate Member State concerns whilst increasing the free movement of goods.

The ECJ, whilst inconsistent at times, have arguably displayed a tremendous success in balancing the aforementioned issue. The ruling in Rewe-Zentral AG exemplified the success in striking a balance by setting out the rule of mutual recognition, which confers the right for goods that are sold in one member state to be sold in another. This rule opened the gates of inter-state trade.[4] Yet, the ruling also admitted that obstacles to the free movement of goods must be accepted, permitting a Member State to utilise a mandatory requirement as a justification. The ECJ took care with its description of mandatory requirements by stating “in particular”, rendering the list non-exhaustive and providing scope to cover regulatory concerns. Furthermore, the ECJ displayed willingness to add to this non-exhaustive list and decipher the just claims from the unjustifiable by ensuring proportionality.[5] Therefore, the ECJ pushed the dial towards their teleological aims whilst protecting the Member States from extreme deregulation.

However, their rulings were far from infallible. The ECJ declared that mandatory requirements were only related to non-discriminatory rules.[6] Distinguishing between indirect discrimination and indistinctly applicable rules proved problematic. The ruling created an unjust balance; Member States accused of discrimination may not have been entitled to derogate under a mandatory requirement. Though if their measure were regarded as indistinctly applicable, they would be entitled. The ECJ, however, ruled leniently in this area to allow for these concerns, holding certain measures as mandatory requirements despite the presence of discriminatory or distinctly applicable measures.[7] Other inconsistencies afflict their jurisprudence.[8] In Keck, the ECJ appeared to have omitted the possible effects imposed on “market access” when analysing Article 34 TFEU. The omission was controversial given the importance of safeguarding market access in facilitating the free movement of goods, and when analysing an infringement from a teleological perspective. The omission can be explained as an attempt to reign in the overabundance of state claims that flowed from Rewe-Zentral AG, to balancing Member State concerns.[9] However, their reasoning only succeeded in highlighting further inconsistencies, as their formalistic approach contradicted their dynamic role to date. Subsequently, such inconsistencies were addressed in Åklagaren which appeared to readmit “market access” back into the process of determining Article 34 TFEU’s scope.[10] From the perspective of the Member State, whilst the ECJ had refined the scope of Article 34 TFEU, in practice the ruling in Keck did little but muddy the waters.[11]

This article has shown that the ECJ struck a successful balance between Member State regulation and the free movement of goods through their creation of mutual recognition, mandatory requirements, and enforcement of proportionality. However, their inconsistent rulings have led to legal uncertainty with regards to the boundaries of the free movement of goods, and arguably rendering their efforts unsuccessful insofar as Member States are concerned.

[1] Case 7/68 Commission v Italy (Art Treasures) [1968] ECR 423; Consolidated version of the Treaty on the Functioning of the European Union [2020] OJ C202/1 art 26. [2] Consolidated version of the Treaty on the Functioning of the European Union [2020] OJ C202/1 art 34.; Commission Notice Guide on Articles 34-36 of the Treaty on the Functioning of the European Union (TFEU) (Text with EEA relevance) 2021/C 100/03. [3] P Craig and G de Búrca, EU Law: Text, Cases, and Materials (UK Version) (7th edn, OUP, 2020) p. 96; teleological referring to an approach to interpreting legislation in light of legal, social, economic, value and purpose goals. [4] Case C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 00649. [5] Cases C-60/84 & C-61/84 Cinéthèque SA and others v Fédération Nationale des Cinémas Français [1985] ECR 020605; Case 178/84 Commission v Germany [1987] ECR 1227. [6] n.4 [7] Case C-389/96 Aher-Waggon GmbH v Bundesrepublik Deutschland. Reference for a preliminary ruling: Bundesverwaltungsgericht – Germany [1998] ECR I-04473. [8] Cases C-267/91 & C-268 8/91 Criminal proceedings against Bernard Keck and Daniel Mithouard [1993] ECR I-6097. [9] n.4 [10] Case C-142/05 Åklagaren v Percy Mickelsson and Joakim Roos [2009] ECR I-4273. [11] n.8

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