Free movement of goods

Question 1

Four freedoms in EU

Answer 1

• goods
• persons (workers, establishment)
• services
• capital and payments

Question 2

Free movement - three steps analysis

Answer 2

1. SCOPE
   Does the situation fall within the scope of free movement? If so, which Treaty Article applies?
2. RESTRICTION
   Is there a restriction under the applicable Article? If so, what type of restriction is it?
3. JUSTIFICATION
   Can the restriction be justified by an important interest? If so, is the measure proportionate?

Question 3

1. Scope - audit scheme

Answer 3

• goods
• Member State behaviour
• cross-border element
• measure having equivalent effects (MEE)

Question 4

Scope - What is a ‘good’?

Answer 4

• products
• valuable in money
• capable of forming the subject of commercial transaction

Controversial: e.g. animals, body parts, real estate, waste

Question 5

Scope - What is a ‘member state’?

Answer 5

• broad understanding of MS (Buy Irish, Walloon Waste):
  includes regional authorities, public undertakings, private bodies authorised by MS, …
• MS also responsible for (dis)behaviour of nationals (Spanish Strawberries)
• more often also addressed to individuals

Question 6

Scope - What is the ‘cross-border element’?

Answer 6

cross border element ≠ inter state element

Question 7

Scope - What is a ‘MEE’?

Answer 7

Measure having equivalent effect (MEE):

• dual regulatory burden is MEE, too
• Dassonville: trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade
• three categories: product requirements, selling arrangements (Keck), and other (e.g. minimum price, restriction on use)

Question 8

2. Product requirements: Dassonville, Cassis De Dijon, Walter Rau cases

Answer 8

Dassonville (1974):
whisky distribution in Belgium: certificate of origin required, criminal sanctions -> considered as MEE

Cassis De Dijon (1979):
French Cassis did not meet German ‘fruit liquor’ requirements -> not allowed to sell -> ECJ: mutual recognition of intra-Community standards

Walter Rau (1982):
Product requirement (cone shaped Margarine packaging) -> protective effect -> obstacle to marketing

Question 9

2. Limitations of MEE - Selling arrangements

Answer 9

• some rules might reflect certain political and economic choices
• not designed to govern the patterns of trade between MS
• Keck & Mithouard (1993) limits Dassonville

Question 10

Keck & Mithouard (1993)

Answer 10

… so long as those provisions apply to all relevant traders operating within the national territory
… so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other MS
-> Such rules therefore fall outside the scope of Art. 30 TFEU

Question 11

2. MEE - Restrictions on use

Answer 11

Commission vs. Italy (2009): use of trailers

-> road safety justifies prohibition of usage of certain products

Question 12

3. Justification

Answer 12

• discriminatory measures (Art. 36)

- non-discriminatory but restrictive measures (Art. 36 and/ or rule of reason)

Question 13

Rule of reason

Answer 13

– no harmonisation
– no discrimination
– overriding reason in the general interest (imperative
reason of general interest, mandatory requirement, …)
– proportionality
• appropriate suitable
• necessary, no less restrictive alternative available