Free movement of goods in relation to environmental concerns

Question 1

How does the EU fundamental freedoms function?

Answer 1

• the EU establishes an internal market (TFEU art. 26.1) where there is free movement of goods, persons, services and capital (TFEU art. 26.2)
• the internal marked is held up by positive harmonization (by imposing directives for the member states to implement and enforce) and negative harmonization (says what the member states cannot do, such as TFEU art. 34+35 on restrictions on import and export)

Question 2

When can member states restrict the free movement of goods when it takes environmental measures?

Answer 2

• TFEU art. 36 makes room for exceptions under art. 34+35 so that some restrictions are legal
• art. 36 does not reference the environment as one reason for exception, but this must be accepted if a member state’s laws is necessary to satisfy mandatory requirements relating to the environment etc. (Cassis de dijon) - rule of reason - allowing non-discriminatory restrictive measures to be justified on grounds other then those listed in art. 36
  
  • member states can take environmental measures if the EU hasn’t taken any regulatory action (no positive harmonization) to a specific environmental problem, or if the member state things that EU’s action is not sufficient to address the environmental problem (see TFEU art. 193)
  • the measures are proportionate to the aim it seeks
  • applies to domestic and imported products without distinction