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.

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[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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