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TABLE OF CONTENTS
Table of Contents..................................................................................................................................... 1
Summary.............................................................................................................................................. 4
Chalmers et al, Ch. 18; Weatherill, Chs. 11 & 12........................................................................6
| S. Weatherill, Law and Values in the European Union (OUP, 2016), Ch 6................................6
I - The location of the threshold at which State regulatory choices become an
"internal market problem".................................................................................................... 7
A - Internal Market............................................................................................................ 7
B - Internal Market............................................................................................................ 8
C - Personal scope of the provision...................................................................................8
II - Whether these are justified............................................................................................. 9
Weatherill, Chs. 9-12; Wyatt & Dashwood, Chs. 13-14 and 17-19............................................10
I - Defining the Trade Barrier: Quantitative restrictions and measures having equivalent effect................................................................................................................................................... 10
Case 8/74 Dassonville [1974] ECR 837;....................................................................................10
*Case 120/78 Cassis de Dijon [1979] ECR 649.........................................................................11
Case 33/74 van Binsbergen [1974] ECR 1299;.........................................................................12
Case C-55/94 Gebhard [1995] ECR I-4165 (esp. para. 37)........................................................12
Cases C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097............................................12
A - On Goods.................................................................................................................................... 12
Cases C-405/98 Gourmet International [2001] ECR I-1795;.....................................................13
Case C-239/02 Douwe Egberts [2004] ECR I-7007...................................................................13
Case C-333/14 Scotch Whisky Association judgment of 23 December 2015.............................13
B - On services................................................................................................................................. 13
Case C-60/00 Mary Carpenter [2002] ECR I-6279....................................................................13
C - On national rules which impose restrictions on the use of products.........................................13
| Case C-110/05 Commission v. Italy [2009] ECR I-519;...........................................................13
| *Case C-142/05 Åklagaren v. Percy Mickelsson & Joakim Roos [2009] ECR I-4273...............13
Oliver and Roth, 'The Internal Market and the Four Freedoms' (2004) 41 CMLRev

407............................................................................................................................................ 14
D - Further reading.......................................................................................................................... 14
| G. Davies, 'Understanding Market Access: Exploring the Economic Rationality of
Different Conceptions of Free Movement Law' (2010) German Law Journal 671.....................14
J. Snell. 'The Notion of Market Access: a Concept or a Slogan?' (2010) 47 CMLRev 437
.................................................................................................................................................. 14
| * I. Lianos, 'In Memoriam Keck: The Reformation of the EU law on the Free
Movement of Goods' (2015) 40 ELRev 225...............................................................................14
II - Justifications.................................................................................................................................. 15
Goods............................................................................................................................................... 15
Case 120/78 Cassis de Dijon (Above)........................................................................................ 15
Case 53/80 Eyssen [1981] ECR 409;.........................................................................................15
Case C-333/14 Scotch Whisky Association (above)...................................................................15
| Case 178/84 Commission v. Germany [1987] ECR 1299 (consumer protection)....................15
Case C-2/90 Commission v. Belgium [1992] ECR I-4431 ('Walloon Waste');............................16
Case C-120/95 Decker v. Caisse de Maladie des Employés Privés [1998] ECR I-1831;
.................................................................................................................................................. 16
Case C-203/96 Dusseldorp and others v. Minister van Volkshuisvesting, Ruimtelijke
Ordening en Milieubeheer [1998] ECR I-4075;.........................................................................16
Case C-389/96 Aher-Waggon v. Germany [1998] ECR I-4473;..................................................16
Case C-67/97 Bluhme [1998] ECR I-8033;................................................................................16
Case C-379/98 PreussenElektra [2001] ECR I-2099;................................................................16
Case C-28/09 Commission v. Austria (judgment of 21 December 2011)...................................16

EU LAW: THE FREE MOVEMENT OF GOODS AND SERVICES

Page 1 Services........................................................................................................................................... 16
Case C-76/90 Säger v. Dennemeyer [1991] ECR 4221;.............................................................16
Case C-384/93 Alpine Investments BV [1995] ECR I-1141;......................................................16
Case C-372/04 ex parte Watts [2006] ECR I-4325....................................................................16
Free movement and fundamental rights......................................................................................... 16
* Case C-112/00 Schmidberger v Austria [2003] ECR I-5659;..................................................16
Case C-71/02 Herbert Karner [2004] ECR I-3025;....................................................................17
Case C-60/00 Mary Carpenter [2002] ECR I-6279;...................................................................17
Case C-36/02 Omega Spielhallen [2004] ECR I-9609................................................................17
Case C-438/05 Viking Line [2007] ECR I-10779.......................................................................17
Case C-341/05 Laval [2007] ECR I-11767.................................................................................17
C. Barnard, 'Fifty Years of Avoiding Social Dumping? The EU's Economic and Not So
Economic Constitution', in M. Dougan and S. Currie (eds.), Fifty Years of the
European Treaties: Looking Back and Thinking Forward (Hart, 2009) 311;............................17
| C. Barnard, 'A proportionate response to proportionality in the field of collective action' (2012) 37 ELRev 117..................................................................................................... 17
| N. Nic Shuibhne, 'Margins of appreciation: national values, fundamental rights and
EU free movement law' (2009) 34 ELRev 230;.........................................................................18
| C. Semmelmann, 'The European Union's Economic Constitution under the Lisbon
Treaty: soul-searching shifts the focus to procedure' (2010) 35 ELRev 516;............................19
D. Schiek, 'The EU Constitution of Social Governance in an Economic Crisis in
Defence of a Transnational Dimension to Social Europe' (2013) 20 MJ 195.............................19
* S. Garben, 'The constitutional (im)balance between the market and the social in the
European Union' (2017) 13 Euro Const Law Rev 23.................................................................19
III - On Exports................................................................................................................................... 19
Goods............................................................................................................................................... 19
Case 15/79 Groenveld [1979] ECR 3409;..................................................................................19
Case C-15/15 New Valmar BVBA (21 June 2016),.....................................................................20
Services........................................................................................................................................... 20
Case C-384/93 Alpine Investments [1995] ECR I-1141.............................................................20
Essay/ Problem Questions.................................................................................................................. 20
Advise Euro plc of its rights, if any, under EU law................................................................................20
To what extent is this statement of the law correct? Does the law need reform?.................................21

EU LAW: THE FREE MOVEMENT OF GOODS AND SERVICES

Page 2 SUMMARY
CHALMERS ET AL, CH. 18; WEATHERILL, CHS. 11 & 12-Cassis de Dijon = "product rules", i.e. rules that require producers to change some aspect of the physical product or packaging before it may be sold, are banned, even if they apply equally to domestic and foreign products:
o Thus creates principle of mutual recognition = goods should only be subject to the regulation of their country of production, though possible to derogate for legitimate and proportionate reasons

Usually treating domestic products less favourably is a matter of national law,
though in exceptional circumstances it may lead to a reputational advantage that distorts free movement
De minimis threshold?
o No - Van de Haar ("Article 34 TFEU does not distinguish measures according to the degree to which trade between Member States is affected")
o But there is a quasi-de minimis threshold - measures whose effect is too uncertain and indirect to be regarded as being of a nature to hinder trade between MSs (Peralta)
Measures that only apply to domestic products:
o Pistre (C-321/94)
 Facts: because ham produced from pigs living in the mountains was particularly good, French law had a rule that you can only call products
"mountain ham" if your ham was actually grown in a way that made it in fact only possible if you grew it in France. But this rule did not apply to imported ham. A French trader complained.
 CJEU: "whilst the application of a national measure having no actual link to the importat on of goods doesn't fall in Article 34, Article 34 cannot be considered inapplicable simply because all the facts of the specific case are confined to a single MS". In this case, the mere creation of a distinction between national and foreign products (through creating a standard that only French products can satisfy) is enough to fall within
Article 34, even though the importer was in fact subject to fewer requirements than French producers.

| S. WEATHERILL, LAW AND VALUES IN THE EUROPEAN UNION (OUP,
2016), CH 6.
Article 3(3) TEU commits the EU to the establishment of an internal market, defined
(Article 26(2) TFEU) as an "area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this
Treaty"  single economic space with 28 MSs:Customs Union (Art 28 TFEU)  prohibition on customs duties between MSs
Prohibition of discriminatory systems of internal taxation (Art 100 TFEU)
Free movement of goods (Art 34-36 TFEU)
Free movement of workers (Art 45-48 TFEU)
Right of establishment (Art 49-55 TFEU)
Free movement of services (Art 56-62 TFEU)
Free movement of capital (Art 63-66 TFEU)

Each has been importantly elaborated by the CJEU.

EU LAW: THE FREE MOVEMENT OF GOODS AND SERVICES

Page 3 Economic logic = internal market generates an intensification of competition, the release of economies of scale, and patterns of industrial restructuring stimulated by achievement of comparative advantage  increase quality of goods and services + reduction in price.
Construction of the intenral market = dynamic process  Commission (2002) declared that it will never be completed and that the "effort to maximize its performance is a process, not an event" + "the single market is evolving, it will never be finalized".It is not complete: some sectors (ex. manufactured goods) are much more integrated than others

Two principle ambiguities:
1) what is subject to review in the name of the internal market?  Vertical issue concerning the extent to which the EU controls the exercise of autonomy within MSs:
the creation of an internal market does not require bland homogeneity, but it does require that a threshold to exist above which local regulatory diversity becomes a problem 2) where the threshold is crossed, how to decide whether and how the CJEU or the legislator resolves the matter  Horizontal issue concerning the relationship between the EU's judicial and political institutions
The legal framework in the Treaty is essentially static, but there are many open and dynamic questions about its interpretation and application. The true nature of the internal market is not spelled out in the Treaties but emerged over time under legislative action + CJEU's caselaw.
Essentially, the internal market is a contested concept.

I - THE LOCATION OF THE THRESHOLD AT WHICH STATE REGULATORY
CHOICES BECOME AN "INTERNAL MARKET PROBLEM"
"Internal market" both empowers and limits the EU. Three issues concerning limits:
A - INTERNAL MARKET

 Market element (economic dimension) --> not defined in Treaties but broad in reach
(all sectors covered in principle - ex. the notion of goods covers waste: Commission v
Belgium)
Cases where there was serious doubt as to the economic element are rare and ad hoc - ex.
cases where EU law was found not to apply:SPUC v Grogan:
o Facts: action was taken pursuant to Irish laws to prevent students' unions in
Dublin from providing abortion information in London.
o CJEU: the Irish law cannot be tested against free movement of services laws because the students' union has no commercial motivation in providing the information.

 Low threshold.
 Free movement and competition provisions are not limited by legislative competence rules  no national regulatory autonomy where that contradicts internal market demands, even where the EU is disabled from intervening through legislative acts

EU LAW: THE FREE MOVEMENT OF GOODS AND SERVICES

Page 4 B - INTERNAL MARKET

 Cross-border element (≠purely internal situations)
But similarly, there are limits in principle but in practice thresholds are very low, partly because the CJEU focuses on the effects of national measures and not their form
(Dassonville), and partly because the process of eliminating national frontiers reduces matters of truly local significance alone.
Then Cassis de Dijon applied Dassonville but was the first case to deal directly with interState divergence among technical standards as a barrier to trade in goods + sets out test with clarity.
Similar rule for national rules governing professional qualifications (refusing profession because of nationality is obviously discrimination, but refusal to recognize qualifications obtained in another MS is a barrier modelled on Cassis de Dijon) + company law (Centros) +
competition law.
Can understand Cassis approach as desire to attack protectionism because the effect of national rules is to isolate the regulated market from competition beyond its borders + reduce consumer choice.
But the Court has gone further → complete bans are caught, as well as rules that impose trade barriers without discriminating and without there being different national rules:Bosman (a footballer's movement from a Belgian club to a French club was prevented by transfer system rules in the sport; would have had same problem moving between
Belgian clubs and to any other MS → problem = the very existence of the system prevented him gaining access to employment market in France and everywhere else):
held that this was a restriction on free movement caught by Art 45 TFEU.

Thus Dassonville/Cassis/Bosman shape internal market law as a system apt to intrude on national autonomy more aggressively than according to a simple and limited demand that imported goods/people/services be treated the same as locals.
But purely internal situations are not caught (Keck v Mithouard) → problem of understanding the reach of the free movement rules and space allowed for national regulatory autonomy.
Not a completed story - the Court appears to have fallen back on troublingly imprecise threshold tests → bright lines are elusive because the very concept of the internal market
(particularly its vertical and horizontal foundations) are ambiguous.
Mickelsson and Roos established a "considerable influence" test but definitional imprecision remains = vague but constitutionally vital threshold test (because it determines whether something falls within scope of Art 34) → reflects awkward distinction that the CJEU has to make without guidance from Treaty + very slippery:Example - Grunkin and Paul: measures liable to cause a serious inconvenience to an affected person = within Art 34 → "serious" carries heavy constitutional weight
Example - Competition law: Commission guidelines on Art 81-82 declare that EU
competition law is "not applicable to agreements and practices that are not capable of appreciably affecting trade between Member States"

Thus, "free movement law is less than a basis for review of any restriction on commercial freedom imposed in a Member State but it is more than an anti-discrimination norm" → need

EU LAW: THE FREE MOVEMENT OF GOODS AND SERVICES

Page 5 a test that recognizes the "dynamic process of market integration" (empowering dimension) + shows respect for principle of conferral (limiting dimension).
Thus, the following are troubling:CJEU's more detailed formulae are operationally imprecise (considerable influence,
serious inconvenience…)
Lack of convergence between the freedoms, though logically the basic issue to be addressed applies in common irrespective of the freedom: the threshold at which national regulatory autonomy becomes subject to review for its prejudicial effect on the EU's internal market.

C - PERSONAL SCOPE OF THE PROVISION

 Free movement provisions don't clarify whether they bind private parties → CJEU
decided that most provisions do impose obligations on private parties but not all (esp.
most provisions concerning goods).
Probably good reasons for this but the CJEU never provided any → uneven.Walrave and Koch (an international cycling sports federation (not a public authority)
had discriminatory rules on grounds of nationality): CJEU held that the rules dealing with nationality-based discrimination and free movement of workers and services (Art

18. 45, 56 TFEU) does "not only apply to the action of public authorities but extends likewise to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services" because:
o 1/ the Treaty objective of tackling obstacles to inter-State trade would be compromised

2/ would risk creating inequality in application of the Treaty provisions because of the diversity between MSs on scope of and relationship between public regulation and private agreements

These are good reasons but surely apply to all freedoms, but CJEU consistently refused to extend to free movement of goods (Schmidberger v Austria, Sapod Audic v Eco-Emballages,
drawing support from Dassonville per the CJEU: trading rules "enacted by Member States").
But the CJEU looks to substance not form: in Commission v Ireland a campaign fell within Art 34 though it was fronted by a private company, because the scheme had been initiated by and initially funded by the Irish government.
Refusal to extend can be justified as a means to show respect for private autonomy (a concern missing from the CJEU's orthodox analysis). Extending can be justified by enhancement of the effective and equal application of EU law.
 BUT extending in certain freedoms and not others is harder to justify → can argue that people (≠goods) asserting free movement rights = stronger human dimension thus inflating the range of parties against whom the claim can be vindicated. But not persuasive because it prioritizes one set of private actors over another.
The CJEU never hinted at rationalizing the area, but the differences are probably too deeply entrenched to do anything now.

II - WHETHER THESE ARE JUSTIFIED
The more accepting of justification, the more the need for legislative action at EU level → the internal market is a site of shared competence comprising of EU and national rules.

EU LAW: THE FREE MOVEMENT OF GOODS AND SERVICES

Page 6 Rise of "horizontal" provisions in the Treaty and Charter:Art 11 TFEU (environmental protection integration)
Art 12 TFEU (consumer protection integration)
Article 165 TFEU (specific nature of sport)
Charter rights informing the interpretation of free movement rules (ex. culture (Art 22), health (Art 35), environment (Art 37) and consumer (Art 38))

But these provisions are not transformative - only confirmative of the CJEU's longstanding practice to interpret and apply EU internal market law with reference to the wider impact of national rules
 Example - Pfleger (controls on gambling): restriction within Art 56 TFEU + Art 15-17
Charter, but in principle concerns such as consumer protection and prevention of fraud and incitement to squander money = adequate justifications
Thus the Charter acquired presentational prominence but not changed the structure or substance of free movement law.
Their application is also controversial - the "horizontal" provisions in Treaty/Charter tend to be soft in legal character (guide policy-making but do not provide a justiciable basis for review of legislative choices).
The Court deliberately chose to pitch the scope of matters that might be advanced as justification far beyond those envisaged by the Treaty = consequence of the structure of the
Treaty itself, which uses free movement and competition law as functionally broad instruments to build an internal market in a way that slices into national autonomy far more deeply than does the EU's legislative competence.
 The structure means that attempt to separate the role of the EU in achieving economic integration from the role of the Member States in choosing patterns of social regulation is fatally damaged → the two collide and the role of justification = arena where priorities come to be decided
Fundamental rights = richest illustration (Schmidberger v Austria - economic rights vs.
political rights) → balancing is awkward - if values are incommensurable, what business is it for judges to decide which prevail? → imperils the separation of powers + rule of law → CJEU
avoids this through proportionality: recognizing that the aims pursued are legitimate but condemning the means chosen.
Art 4(2) TEU would play an increasing role in framing the management of this tension:Example - Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien (Austria forbids use of noble titles whereas Germany allows part of notble titles to be retained in the surname. The applicant was advised that her name would be stripped down in Austria,
which constituted serious inconvenience to her commercial activity (seller of castles)):
CJEU held that the national authorities had a "margin of discretion", and that in accordance with Article 4(2) the Union is to respect the national identities of Member
States, and that it was not disproportionate for a MS to seek to attain the objective of protecting equal treatment by prohibiting use of titles of nobility.

Therefore, Art 4(2) TEU transforms national concerns into EU concerns (≠EU law defers to
Austrian law as a superior norm) → EU LAW HAS WITHIN IT AN EU CONCEPTION OF
CONSTITUTIONAL VALUES, WHICH NEED NOT BE UNIFORM, but do need to be constrained by the demands of EU law (especially EU's own values).

EU LAW: THE FREE MOVEMENT OF GOODS AND SERVICES

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