ROBERT GORDON UNIVERSITY

Dept. of law
BSM614 - Full Time: European Union Trade Law

Essay title 2013

According to the European Commission, The free movement of goods is one of the success stories of
the European project.

European Commission, Guide to Free Movement of Goods (2010) page 8

http://ec.europa.eu/enterprise/policies/single-market-goods/files/goods/docs/art34-
36/new_guide_en.pdf

Discuss this statement from a critical perspective, basing your analysis on significant case law in this
area.

Words: 4397

1
1. Introduction

In the middle of the World's biggest financial and economic crisis since the Great depression
of 1930s1, when the destiny of the EU project is more unclear than ever before,2 the strong
voice of the EU Commission claiming that "The free movement of goods is one of the success
stories of the European project"3 is aimed at bringing the discussion for the future of the EU
back on the track of the solid reasoning and outside the populist political talking. The purpose
of this essay is to try to find some of general supporting and opposing grounds for that
statement of the European Commission, based on examination of the respective TFEU
provisions and some of the key practice of the ECJ4. Short summary of the importance of the
Free movement of goods for the establishment of the EU will be briefly presented. Some of
the main contradictories of the leading role of the ECJ in forming the EU law by its practical
application, which is often criticized for its inability to create consistent decisions, will be
analyzed.

2. The importance of the Free movement of goods for the EU

It will not be an overstatement if we mark the "Free movement of goods" as the most
significant core-policy of the EU5. Today, over 50 years after it emerged as a foundation6 for
the very creation of the European Coal and Steel Community - the grandparent of today's EU,
followed by the longest period of peace and prosperity in the history of Europe7, the Free
movement of goods concept is still the bedrock of the European idea.8 The economic reasons
for its creation are more than justified and so are the political, which is why it may be said

1
Janja Hojnik Free Movement of Goods in a Labyrinth: Can Buy Irish survive the Crises? (2012) 49, Common
Market Law Review, page 291
2
The voices of the euroscepticism in Europe are increasing as UK as one of the biggest economies in EU and
one of the 3 major financial hubs in the World puts its membership in the EU in question
http://www.bbc.co.uk/news/uk-politics-21148282
3
European Commission, Guide to Free Movement of Goods (2010), page 8
http://ec.europa.eu/enterprise/policies/single-market-goods/files/goods/docs/art34-36/new_guide_en.pdf
4
The ECJ is officially named in the current Treaties (TEU and TFEU) - Court of Justice of the European Union,
hereinafter in this essay referred to as "ECJ" or simply as the court
5
F Leidenmihler, The Free movement of goods within an EC-wide market: Still a work in progress (2004) 12
Cardozo J. Int'l & Comp. L. 163 2004
6
The creation of the European Coal and Steel Community was first proposed by French foreign minister Robert
Schuman on 9 May 1950 as a way to prevent further wars between France and Germany.
7
In 2012 the EU was awarded the Nobel Peach Prize for its role in uniting the continent after two world wars,
creating a precedent in the world history. http://www.bbc.co.uk/news/world-europe-20664167
8
D. Chalmers, "Free Movement of Goods within The European Community: An unhealthy addiction to scotch
whisky?", (1993), vol. 42, Int'l & Comp. L.Q., page 269
2
that the Free movement of goods has the biggest impact on the establishment of the today's
European Union.

In the same time the Free movement of goods legal framework is a constant subject of
violations by national governments, seduced by protectionist thoughts.9 There is only one
justifiable reason for that and it is a basic economic one - to protect domestic industry from
competition and imports. But while protectionism would provide comfort for local businesses,
in a long term10 the benefits of their disturbance are believed to be a lot more valuable and
may be summarized as: (1) increased trade promotes economic growth; (2) increased global
competitiveness; (3) domestic products subjected to more competition create more efficient
businesses; (4) uniform market rules bring more investments and incentive for business
expansion; (5) consumers have wider choice, etc. This list can go a lot further, so the question
if the free common market is a good thing (at least in theory) has a simple positive answer.
What is not simple are the means and the approaches used by the court to protect that
extremely important concept.11

3. Short overview of the free movement of goods treaty provisions

The EU "Free movement of goods" policy is based on the treaties and their enforcement by
the ECJ. Some critics say that the scope of this policy is so large and important that hardly
any business activity remains intact of it, which is why this scope should be extremely more
unambiguous than it is now.12 However, the main regulations of current and former treaties
are, at first sight, more than specific.

9
This is a suggestion based on the case law, which is examined below
10
O. Bogdanova, Model of free movement of goods and services in the EU", (2012), vol. 17(1) Economics and
Management; Less developed countries joining the EU would initially suffer from the enormous new
competition. The author clearly defines that in order for newer and less developed member states to benefit
economically from their membership much depends on activities performed by governments open borders
mean not only attractive opportunities for businesses in other countries, but also new competitors coming to a
domestic market The only way for entrepreneurs to hold back the external pressing is to be active and spread
operation throughout the other countries.
11
Marek Szydo, Export Restrictions Within The Structure Of Free Movement of goods. Reconsideration of an
old paradigm, (2010) 47, Common Market Law review, page 777 - 778
12
Opt. cit D. Chalmers, page 269
3
Article 28 (1) TFEU establishes a customs union between the member states and adopts a
common custom tariffs for third countries. The measures used by the legislator to achieve the
common market idea can be divided to external and internal measures.13

Inside the common market, according to Article 30 TFEU an application of customs duties
and all charges having equivalent effect shall be prohibited, while Article 110 TFEU
abolishes discriminatory taxation. Articles 34 and 35 TFEU eliminate the so called
quantitative restrictions on imports and exports, as well as measures having equivalent
effect. Article 36, on the other side provides the main grounds for derogation of the free
movement of goods, namely: (1) public morality, (2) public policy, (3) public security, (4)
protection of the health and life of humans, animals and plants, (4) protection of national
treasures possessing artistic, historic or archaeological value, (5) the protection of industrial
and commercial property. These are being supplemented by some additional derogation
provisions, such as: (1) measures to meet short-term economic difficulties (Art. 121 TFEU),
(2) measures to meet balance of payment difficulties (Art. 219 TFEU) and (3) interests of
national security (Art. 346, 347 TFEU). All provisions overriding Art. 34 are construed by the
ECJ extremely narrowly making their successful use relatively rare.14

Outside the common market, a common customs tariff between the EU and other states is
created, first issued in 1963 by the Council and constantly kept up-to-date by the same.15

4. Development of the common market law by the ECJ

Even with an uninformed eye, it can easily be observed that there is a lot of vagueness behind
some of the phrases used by the legislator, such as measures having equivalent effect,
quantitative restrictions, charges having equivalent effect, public morality, etc. No other
title of the TFEU inspires more practice of the ECJ than title II of TFEU.16 An enormous
space for interpretation is left to the court. That is why it may be said that the case law
produced by the ECJ gives almost all the definitions to realising the reasoning behind the

13
August Reinisch, Chapter 7 - The free movement of goods, Essentials of EU Law, (2nd Ed., Cambridge
University Press 2012), page 121
14
Case 34/79 R v Henn and Darby [1979] ECR 3975 - an example for successful application of Art. 36 TFEU
15
Ibid.
16
M. Egan, Constructing a European Market: Standards, Regulation and Governance (Oxford University Press,
Oxford 2001), page 88
4
Free movement of goods and the internal market ideas.17 It may also be said that the EU
Free movement of goods Law is created and developed by the court while it is protected and
enforced by the court. For example the term quantitative restrictions is defined by it in
Geddo v Ento Nazionalle18 as "measures which amount to total or partial restraintof
imports, exports or goods in transit"19. Even the meaning of goods itself was subjected to
ECJ's interpretation in Case 7/68 Commission v Italy20, and defined as "products which can be
valued in money and which are capable, as such, of forming the subject of commercial
transactions"21.

The EU free movement of goods law as part of the European integration is not static, it is an
ever changing process22 and like any other process - frictions are forming its evolution23. That
is why the ECJ is often blamed for introducing inconsistent decisions and creating a legal
uncertainty by trying to define the scope and to apply the treaty provisions.24

4.1. Cornerstone case law

It might be said that the ground for the extensive ECJ influence on the development of EU
Law was laid by forming the principle of direct effect in Van Gend en Loos 25 and the
principle of supremacy in Costa V. ENEL 26 - the former warranting the legal right of EU
citizens to defend their treaty rights in domestic courts, and the latter enthroning the EU treaty
as superseding inconsistent national laws27. Even though, it took more than 10 years after the
outcomes from these two major cases to allow the rapid development of EU trade law by the
Court to proliferate.

17
P Craig. G. de Burca, Free movement of goods: quantative restrictions, EU Law: Text, cases and materials,
4th ed., (Oxford University Press, New York. 2008)
18
Case 2/73 Riseria Luigi Geddo v Ente Nazionale Risi, [1973] ECR 865
19
Ibid.
20
Case 7/68 Commission v Italy, [1968] ECR 423
21
Ibid.
22
J. Golub, Survival analysis and European Union decision-making (2007) 8(2) European Union Politics, page
155
23
Stephen Weatherill, Recent developments in the law governing the free movement of goods in the ECs
internal market, (2006) 2(1), European Review on Contract Law, page 91
24
Gareth Davies, The Courts jurisprudence on free movement of goods : pragmatic presumptions, not
philosophical principles, (2012) 2, European Journal of Consumer Law/Revue Europeenne de Droit de la
Consommation, 25
25
Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Nederlandre
Administratie der Belastingen [1963] ECR 1.
26
Case 6/64 Flamino Costa v Ente Nazionale per lEnergia Elettrica (ENEL) [1964] ECR 585.
27
B. D. Witte Direct Effect, Supremacy and the Nature of the Legal Order. The evolution of EU law, PP
Craig,G. De Brca, (1999 Oxford and New York: Oxford University Press., page 177)
5
The best illustration for the significance of the ECJ's role in establishing the factual rules
regulating the free movement of goods are the cornerstone Dassonville28, Cassis de Dijon29
and Keck30 cases, which are focused on explaining and revealing the practical meaning of
Article 34 TFEU. In the first case the ECJ's interpretation of the term measures having
equivalent effect (hereinafter MEQR) was provided, in the second the rule of reason, as
well as, the principle of mutual recognition of goods legally produced and marketed in
another EU member state were established, and in the third "national provisions restricting or
prohibiting certain selling arrangements"31 were justified and created the Keck test for
exclusion of measures from the scope of Dassonville. All these cases, of course, cannot be
summarized with just a couple of words. They have a tremendous impact on the ECJ's
subsequent Free movement of goods case law.

4.1.1 Dassonville

In Dassonville a failed import of scotch whisky into Belgium became the reason for the ECJ
giving its understanding for MEQR, creating what is known in the legal doctrine as the
Dassonville formula. The ECJ stated that MEQR are "all trading rules enacted by member
states which are capable of hindering, directly or indirectly, actually or potentially, intra-
Community trade".32 The formula was so broad that it was not even necessary for the trade
between member states to be actually hindered as long as a certain measure had such
potential.33 It caught both the so called distinctly and indistinctly applicable measures, the
former easier to be detected as being measures that are overtly protective, apply only to
imports, and which would always be in breach of Article 34 TFEU except where Article 36
TFEU may apply, and the latter being measures that apply to foreign and domestic goods in
the same way, and which would only be in breach of Article 34 TFEU if no rule of reason34
applies.

28
Case 8/74 Procureur du Roi v Benot and Gustave Dassonville [1974] ECR 837
29
Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fr Branntwein [1978] ECR 649
30
Joined cases C-267/91 and C-268/91, Criminal proceedings against Bernard Keck and Daniel Mithouard
[1993] ECR I-6097
31
Ibid.
32
Opt. cit. Procureur du Roi v Benot and Gustave Dassonville
33
J Steiner, L Woods, Free movement of goods, EU Law, (10th ed., Oxford University Press 2009), page 419
34
The rule of reason was later defined in "Cassis de Dijon" - Case 120/78 Rewe-Zentral AG v
Bundesmonopolverwaltung fr Branntwein [1978] ECR 649, which is explained below.
6
Although considered by some commentators as more harmful as it had caused serious
controversy in case law, from today's perspective 35 the development of the Dassonville
formula was a typical example for the significance of the ECJ's rulings to the Free movement
of goods law back in 1974. Since Dassonville, the level of adequacy of a measure adopted by
member country and its necessity to be protected was constantly on the focus of the ECJ.36
Even though Dassonville encompasses trading rules it was quickly found to be much wider
than that, as it goes beyond merely legislative acts.37 Some of the emblematic cases showing
the wide scope of the Dassonville formula are Rewe-Zentralfinanz38 (mandatory pests
inspection of apples in order to enter the market in another member state was found
unjustified), Commission v Ireland 39 (a requirement for indication of foreign metal-made
souvenirs' origin of production was banned by the ECJ) and Buy Irish 40 (the ECJ found that a
publicly funded Buy Irish campaign was contrary to Article 34 TFEU). All these
represented examples of overtly protective measures (distinctly applicable measures) taken by
member states, which are falling under the ECJ's Dassonville formula interpretation as
directly impeding the free movement of goods. The Dassonville formula was so broad that it
had the potential to jeopardise the European integration as it did not pay attention to the
governments' legislative intentions,41 but was only taking consideration on the effect of the
measures. That is why a further refinement of the case law concerning distinctly and
indistinctly applicable measures needed to be made.42

4.1.2. Cassis

This did not happen before a later case known as Cassis de Dijon stood before the court in
1978. In this case the ECJ was asked to discuss if a German statute requiring a minimum of
25 % alcohol content in particular liquors is in compliance with EU law. The statute was
found by the court as indirectly restrictive to the import of cassis liquor from France, which
only contained 15-20 % alcohol. The German law was not directly aimed (it was indistinctly
applicable) at banning the foreign liquor, but in the end it actually prevented it from entering
the market.

35
Laurence W. Gormley Free Movement of Goods and their use - What is the use of it? (2011), 33/6 Fordham
International Law Journal, page 3
36
Ibid.
37
Opt. cit. August Reinisch, page 126
38
Case 4/75, Rewe Zentralfinanz v Landwirtschaftskammer Bonn [1975], ECR 843
39
Case 113/80, Commission of the European Communities v Ireland [1981], ECR 1625
40
Case 249/81, Commission of the European Communities v Ireland [1982], ECR 4005
41
Opt. cit. J Steiner, L Woods, page 420-421
42
Ibid.
7
While discussing the case, the court narrowed the Dassonville formula creating the rule of
reason which allows governments to impose (indistinctly applicable) restrictions on inter
state trade, only where a justifiable reason for any such measures taken by a Member state is
presented. The judges ruled that such justification, excusing the prima facie obvious breach of
Article 34 when applying the Dassonville test, may be founded on a necessity for the national
government "to satisfy mandatory requirements relating to particular effectiveness of fiscal
supervision, the protection of public health, the fairness of commercial transactions and the
defence of the consumer"43(unexhaustive list). Any such measure would be found justifiable
by the court only if proportionate - meaning that the government shall evidence that there
was no easier way to deal with the problem than imposing a restriction44. This was a
breakthrough since before Cassis it was believed that any measure not satisfying the
Dassonville test could prevent breaching Article 34 TFEU only by application of Article 36
TFEU.45

This kind of extension of Article 36 TFEU was further formed by case law in cases such as
Oebel46 where the court considered that the heath and safety of the workers represents a
mandatory requirement in the sense of Cassis, case Vereinigte Familiapress47 where the
diversity of the press prevailed over Article 34 and case Commission v Denmark48 where the
protection of the environment was accepted the ECJ as a matter of predominant public
interest, etc. One of the biggest problems in applying the Cassis principle for the ECJ, though,
was the fact that it did not always succeed to find the thin line between distinctly and
indistinctly applicable measures which lead to some controversies in the approaches of the
judges, especially when they sometimes decided, to use only the provisions of Article 36
TFEU to test a potential breach of Article 34 TFEU.49

The second big achievement of the court in Cassis was the creation of the Mutual
recognition principle , basically saying that if goods are "lawfully produced and marketed in
one of the Member states" 50they should not be stopped from being marketed "into any other

43
Opt. cit. Cassis case
44
Ibid, page 421
45
Ibid., page 423
46
Case 155/80 Sergius Oebel, [1981] ECR 1993
47
Case 368/95 Vereinigte Familiapress v. Heinrich Bauer Verlag [1997] ECR I-3689,
48
Case 302/86 Commission v. Denmark [1988] ECR 4607
49
Opt. cit. J Steiner, L Woods, page 422
50
Opt. cit. Cassis case
8
Member state"51. Therefore if a member state applies any control, besides control required by
the EU itself , on goods produced and marketed in conformity with all regulations of the
importing Member state, this would be treated by the ECJ as a MEQR. The only thing capable
of overriding the strong presumption of the principle is the existence of proofs for public
interest protection necessity.52 Even where such necessity is found existent, the measures
taken by the Member state shall still be reasonable and proportionate. An expression of
the principle is the fact that today any desire of the Member states to apply a measure for
protection of public interest is first brought to the attention of the Commission for justification
of its necessity and proportionality.53

The result of the Cassis case itself was that the German government was found to be in breach
of Article 34 TFEU, because its claim that consumer's health was jeopardised by the lower
alcohol content in the French liqueur did not correspond to the newly invented rule of reason.
The German statute requiring a minimum alcohol content was not mandatory for the
protection of the public interest, which could have been protected by simple labelling.

The examples for application of the Cassis necessity and proportionality reasoning in
consequent case law are numerous. In 1989's Commission v Germany54 national rules
prohibiting the import of meat products that contain ingredients other than meat in Germany
were held by the ECJ contrary to Article 34 TFEU. In Drei Glcken55 an Italian public heath
safety legislation banning German import of pasta which was not made of only durum wheat,
but of mixture of durum wheat and common wheat, was found disproportionate and in breach
of Article 34 TFEU, as the same goal could be achieved by simple labelling. In Case Walter
Rau56 a similar approach was followed by the court stating that labelling is sufficient and no
Belgian legislation requiring margarine to be only packed in cube-shaped boxes in order not
to be mistaken with butter is corresponding to Free movement of goods regulations of the EU.
Although, accepted by the doctrine as a breakthrough in application of the Free movement
of goods law by the court, Cassis also showed some defects, especially concerning the
overexploitation of its achievements.57

51
Ibid.
52
Opt. cit. S Weatherhill, page 94
53
Opt. cit. J Steiner, L Woods, page 424
54
Case 274/87 Commission of the European Communities v Federal Republic of Germany [1989] ECR 229
55
Case 407/85 3 Glocken and Others v USL Centro-Sud and Others [1988] ECR 4233
56
Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PVBA [1982] ECR 3961
57
Opt. cit. J Steiner, L Woods, page 425
9
Cassis was misused by different resourceful European lawyers, which brought to an outburst
of cases and respectively numerous inconsistent decisions of the ECJ58. The over-extension of
the Cassis principle could be easily seen in the so-called the Sunday-trading cases59 (where
even the old British tradition on closing shops on Sundays was questioned under Article 34)
This situation was heavily criticised by many scholars as hindering the regulatory power of
the Member states in an unconscionable way.60 Not even long established national
characteristics were outside danger of being derogated by the ECJ's perception of Article 34
TFEU. The most frequently given example for the juridical chaos following the application
of Cassis's rule of reason is Stoke-on-Trent City Council v B&Q plc61 where the ECJ was
asked to further interpret on its own previous decisions concerning Sunday trading in the UK
and particularly on the way the rule of reason should be applied by the British court62,
revealing the great efforts and confusion experienced by the latter when trying to properly
apply it.63

4.1.3. Keck

Even though in the Sunday-trading cases and on some other instances the ECJ recognized,
after all, that some rules could justify the national legislator keeping some sovereignty on
regulating its domestic market64, it did not initially take firm position on the question and left
it to the UK courts. The inability of the ECJ to draw a distinct enough line between
proportionate and necessary and disproportionate and unnecessary measures was obvious. A
change of direction was needed. This situation was relieved with joined cases Keck and
Mithouard65 by a split of the indistinctly applicable measures in two new subgroups, which
partially invalidated some aspects of the Dassonville formula and represents a rare example of
the ECJ overturning a precedent.

58
Opt. cit, Weatherhil, page 95
59
Case 145/88 Torfaen Borough Council v. B & Q plc [1989] ECR 3851; Case 169/91 Council of the City of
Stoke-on-Trent v. B & Q plc [1992] ECR I-6635; Case 312/89 Union D partement des Syndicats CGT de
lAisne v. Conforama [1991] ECR I-997
60
Opt. cit. J Steiner, L Woods, page 426
61
Case 169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc. [1992] ECR I-
06635
62
The ECJ went to a conclusion that the UK law on closing the shops was justified under the Free movement of
goods regulations, which was different to the previous conclusions of some British courts which were left to
decide the proportionality of the UK legislation banning Sunday trade alone.
63
Opt. cit. J Steiner, L Woods, page 426
64
Opt. cit. August Reinisch, page 134
65
Joined Cases C-267 and 268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR
I-6097
10
Keck and Mithouard were selling goods below their actual price and therefore put on trial in
France, because of a French law banning such predatory pricing. Their lawyers claimed that
the ban is contrary to Article 34 TFEU as an indistinctly applicable measure failing to be
justified under the Cassis formula. On the first stage of the case, the ECJ supported this view
accepting that such French law may affect the import of goods and hinder the trade between
Member states, but after two inconsistent opinions of Advocate general van Gerven made at
the two different stages of the case (as it was referred later to the full Court), the full Court
decided to take total control on the situation considering that a re-examination of the ECJ's
case law was needed.66 The ECJ reached an important conclusion that changed the whole
direction of its consequent case law and redefined one more time the Dassonville formula,
stating:

"However, contrary to what has previously been decided,

the application to products from other Member States
of national provisions restricting or prohibiting certain
selling arrangements is not such as to hinder directly or
indirectly, actually or potentially, trade between Member
States within the meaning of the Dassonville judgment,
provided that those provisions apply to all affected traders
operating within the national territory and provided that
they affect in the same manner, in law and in fact, the
marketing of domestic products and of those from other
Member States.
Where those conditions are fulfilled, the application of
such rules to the sale of products from another Member
State meeting the requirements laid down by that State
is not by nature such as to prevent their access to the
market or to impede access any more than it impedes
the access of domestic products. Such rules therefore
fall outside the scope of Article 30 [currently 34 TFEU] of the Treaty."67

In Keck, for the first time, the ECJ decided to create a distinction between the Member state
indistinctly applicable measures, which after this case were contrasted as rules relating to
product requirements and rules relating to selling arrangements. The former were left as
subject to the Dassonville formula (the Court specified that such product requirements

66
A Arnull, Chapter 11 - The free movement of goods, The European Union and its Court of justice (2nd ed.,
Oxford University Press, New York, 2006)
67
Opt. cit. Keck and Mithouard
11
would be e.g. designation, form, size, weight, composition, presentation, labelling,
packaging68) and the latter were pushed outside the scope of Article 34 TFEU.69 Selling
arrangements that are applicable to any trader on an equal basis should always be treated as
not being MEQR in the sense of Dassonville. The problem in Keck, however, was in the
absence of a proper definition for neither selling arrangement, nor product requirement.
Hence, the meaning of selling arrangement was often mistaken or inwrought with product
requirement as observed in later case law.70

5. No certainty after Keck

Although allowing more flexibility for the court when judging on Article 34 and marked in
advance as a big success by the Commission71, the Keck formula did not solve anything in full
and the ECJ still had to address a lot of issues.72

A notorious example, showing that the distinction between product requirements and selling
arrangements was not at all easy to be found appeared in Vereinigte Familiepress 73 where the
ECJ held that an Austrian ban on the inclusion of prize draws and competitions in periodicals,
which were meant to increase sales, was not to be classified as a selling arrangement (contrary
to the common sense), but as a product requirement, because it related to the content of the
magazine. Another contradictory case emerged in the late 90s - Gourmet International74. The
case concerned a prohibition of alcohol print advertising by Sweden. Although it was not
aimed at any particular product and accordingly should had been classified as a selling
arrangement, the ECJ took a surprising decision in the contrary, saying that there is a high
possibility for a foreign alcohol imports to be affected by the ban and therefore it found the
Swedish law contrary to Article 34 TFEU.

On the other hand, some national marketing regulations (e.g. such as rules protecting the
consumers) which tend to sometimes be focused on one particular type of products or product
may automatically be classified by the ECJ as product requirements. For instance in

68
Ibid., para 15
69
P. Oliver, S. Enchelmaier, Free Movement of Goods: Recent Developments in the Case Law, (2007) 44,
Common Market law review, page 672
70
Ibid., page 674
71
Opt. cit., S Weatherhill, page 97
72
Ibid.
73
Case 368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag. [1997]
ECR I-03689
74
Case 405/98 Gourmet International Products [2001] ECR I-01795
12
Verband Sozialer Wettbewerb v. Clinique Laboratories75 a German consumer protection rule
prohibiting the marking of particular cosmetic products as clinique (because the consumer
might be confused to believe that they have medical properties) was interpreted by the ECJ as
contrary to Art. 34 TFEU, because it was highly restrictive to imports and could not be
justified as necessary for health protection reasons. The German law was held by the court to
be indirectly aimed at the products themselves, which is why it was interpreted as a product
requirement, regardless it was, strictly speaking, a selling arrangement. Than in Verein gegen
Unwesen in Handel und Gewerbe Kln v. Mars76 another German statute banning an ice
cream +10% content promotion campaign as contrary to fair competition was held by the
judges in Luxembourg as infringing Art. 34 TFEU as it could influence the foreign importer's
decision to market its product on German territory by requiring latter's products to be
repacked. It was another example of indirect product requirement.

More recently, in Alfa Vita77 a Greek law regulating the sale of bread (which was produced
only half baked and sold after extra-baking at the store) by requiring the seller to be duly
licensed and equipped to bake the bread, was found inconsistent with Article 34 TFEU. The
ECJ considered the Greek regulation as an example of product requirement, even though it
regulated not the product itself, but the place where such product could be processed. The
reason was that the court took into concern the fact that the regulation was indirectly relevant
to the production process of such bread and not only defined the place of its production,
because it did not "take the specific nature of those products into account and entails
additional costs, thereby making the marketing of those products more difficult".78 To
summarize - the court seemed to had narrowed the Keck's selling arrangements
understanding, saying than even if the product is not directly concerned by a particular
regulation, it may still be classified as a product requirement.79

In the same time, other cases like Morellato80 to certain extent managed to keep a more clear
Keck line when distinguishing between selling arrangements and product requirements.
In this case, for example, the court summed up its previous practice stating that the need to

75
Case 315/92 Verband Sozialer Wettbewerb v. Clinique Laboratories [1994] ECR I-317
76
Case 470/93 Verein gegen Unwesen in Handel und Gewerbe Kln v. Mars [1995] ECR I-1923
77
Case 158/04 Alfa Vita Vassilopoulos [2006] ECR I-08135
78
Ibid, para 19
79
Opt. cit. J Steiner, L Woods, page 432
80
Case 416/00 Tommaso Morellato v Comune di Padova [2003] ECR I-09343
13
alter packaging or the labelling of imported products prevents such requirements from
constituting selling arrangements.

Advertisement was another contradictory area, where the court's rather mechanical approach
to apply Keck was widely criticized81. In Leclerc - Siplec82 the court ruled that "regulation or
administrative action in Member States concerning the pursuit of television broadcasting
activities does not preclude Member States from prohibiting, by statute or by regulation, the
broadcasting of advertisements for the distribution sector by television broadcasters
established on their territory."83 This position, though, was later re-examined as in TV-Shop84
the court agreed, that even though a ban on TV-ad of a dinosaurs-themed periodical for
children was a selling arrangement in the sense of Leclerc-Siplec, it might still impede market
access for foreign goods and therefore breach Art. 34.85 The ECJ left to the domestic court the
decision if the ban of such advertisement was well founded as a matter of fact and necessary
for the protection of the public interest.

6. Judicial activism & Conclusion

Although the judges of the ECJ are meant to be impartial and uninfluenced by the
governments that have nominated them, the court is sometimes blamed for taking some
politically biased decisions.86 When the financial aspect of a certain decision could be highly
influential on a particular Member state or when wide internal or external critique is
encountered, the ECJ tends to take some non-legal positions into concern when deciding on
a particular case.87 In that sense - the flexibility of the court extended by Keck was a
supporting tool for this tendency. However, this is not the only reason for the inconsistencies
of the court.

The matter of Free movement of goods is a subject to constant change and every formula that
the ECJ creates in its practice is normally to be adjusted as to reflect the actual facts of every
particular case. There are no universal solutions, as after all, the adjudication is an active

81
Opt. cit. A Arnull, page 435
82
Case 412/93 Socit d'importation Edouard Leclerc-Siplec v TF1 Publicit SA M6 Publicit SA. [1995]
ECR I-00179
83
Ibid.
84
Joined cases 34/95, 35/95 and 36/95 [1997] ECR I-3842
85
Ibid, para 42
86
Grainne de Burca, The European court of justice and the evolution of EU Law, The state of the European
Union, vol. 6 (Oxford University Press, New York, 2003)
87
Ibid.
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process, because no case is the same as the other. The facts speak that the system of the Free
movement of goods works and today it is more developed than ever before. Evidence are the
very similar pricing and variety of goods all over the EU. That is why, it might be said that the
ECJ is a successful instrument for interpretation and enforcement of EU Law and the Free
movement of goods is in general one of the success stories of the EU.

Bibliography

Primary sources

Legislation

1. Treaty on European Union

2. Treaty on the Functioning of the European Union

Cases

1. Case 34/79 R v Henn and Darby [1979] ECR 3975

2. Case 2/73 Riseria Luigi Geddo v Ente Nazionale Risi, [1973] ECR 865

3. Case 7/68 Commission v Italy, [1968] ECR 423

4. Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Nederlandre
Administratie der Belastingen [1963] ECR 1.

5. Case 6/64 Flamino Costa v Ente Nazionale per lEnergia Elettrica (ENEL) [1964] ECR 585.

6. Case 8/74 Procureur du Roi v Benot and Gustave Dassonville [1974] ECR 837

7. Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fr Branntwein [1978] ECR 649

8. Joined cases C-267/91 and C-268/91, Criminal proceedings against Bernard Keck and Daniel
Mithouard [1993] ECR I-6097

9. Case 4/75, Rewe Zentralfinanz v Landwirtschaftskammer Bonn [1975], ECR 843

10. Case 113/80, Commission of the European Communities v Ireland [1981], ECR 1625

11. Case 249/81, Commission of the European Communities v Ireland [1982], ECR 4005

12. Case 155/80 Sergius Oebel, [1981] ECR 1993

13. Case 368/95 Vereinigte Familiapress v. Heinrich Bauer Verlag [1997] ECR I-3689

14. Case 302/86 Commission v. Denmark [1988] ECR 4607

15. Case 274/87 Commission of the European Communities v Federal Republic of Germany [1989] ECR
229

16. Case 407/85 3 Glocken and Others v USL Centro-Sud and Others [1988] ECR 4233

17. Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PVBA [1982] ECR 3961

15
 18. Case 145/88 Torfaen Borough Council v. B & Q plc [1989] ECR 3851

19. Case 169/91 Council of the City of Stoke-on-Trent v. B & Q plc [1992] ECR I-6635

20. Case 312/89 Union D partement des Syndicats CGT de lAisne v. Conforama [1991] ECR I-997

21. Case 169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc. [1992] ECR
I-06635

22. Case 368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag.
[1997] ECR I-03689

23. Case 405/98 Gourmet International Products [2001] ECR I-01795

24. Case 315/92 Verband Sozialer Wettbewerb v. Clinique Laboratories [1994] ECR I-317

25. Case 470/93 Verein gegen Unwesen in Handel und Gewerbe Kln v. Mars [1995] ECR I-1923

26. Case 158/04 Alfa Vita Vassilopoulos [2006] ECR I-08135

27. Case 416/00 Tommaso Morellato v Comune di Padova [2003] ECR I-09343

28. Case 412/93 Socit d'importation Edouard Leclerc-Siplec v TF1 Publicit SA M6 Publicit SA.
[1995] ECR I-00179

Secondary sources

Books

1. J Steiner, L Woods, Free movement of goods, EU Law, (10th ed., Oxford University Press 2009)

2. P Craig. G. de Burca, EU Law: Text, cases and materials, 4th ed., (Oxford University Press, New York.
2008)

3. M. Egan, Constructing a European Market: Standards, Regulation and Governance (Oxford University
Press, Oxford 2001)

4. August Reinisch, Essentials of EU Law, (2nd Ed., Cambridge University Press 2012)

5. B. D. Witte, The evolution of EU law, PP Craig,G. De Brca, (Oxford University Press, New York
1999)

6. A Arnull, The European Union and its Court of justice (2nd ed., Oxford University Press, New York,
2006)

Journal articles

1. F Leidenmihler, The Free movement of goods within an EC-wide market: Still a work in progress
(2004) 12 Cardozo J. Int'l & Comp. L. 2004, page 163

2. D. Chalmers, "Free Movement of Goods within The European Community: An unhealthy addiction to
scotch whisky?", (1993), vol. 42, Int'l & Comp. L.Q., page 269

3. O. Bogdanova, Model of free movement of goods and services in the EU", (2012), vol. 17(1)
Economics and Management

4. Janja Hojnik Free Movement of Goods in a Labyrinth: Can Buy Irish survive the Crises? (2012) 49,
Common Market Law Review, page 291

5. Marek Szydo, Export Restrictions Within The Structure Of Free Movement of goods. Reconsideration
of an old paradigm, (2010) 47, Common Market Law review, page 777 - 778

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 6. J. Golub, Survival analysis and European Union decision-making (2007) 8(2) European Union
Politics, page 155

7. Stephen Weatherill, Recent developments in the law governing the free movement of goods in the
ECs internal market, (2006) 2(1), European Review on Contract Law, page 91

8. Gareth Davies, The Courts jurisprudence on free movement of goods : pragmatic presumptions, not
philosophical principles, (2012) 2, European Journal of Consumer Law/Revue Europeenne de Droit de
la Consommation, page 25

9. Laurence W. Gormley Free Movement of Goods and their use - What is the use of it? (2011), 33/6
Fordham International Law Journal, page 3

10. P. Oliver, S. Enchelmaier, Free Movement of Goods: Recent Developments in the Case Law, (2007)
44, Common Market law review, page 672

Other resources

-European Commission, Guide to Free Movement of Goods (2010), page 8

http://ec.europa.eu/enterprise/policies/single-market-goods/files/goods/docs/art34-36/new_guide_en.pdf

-BBC News website:

David Cameron promises in/out referendum on EU: http://www.bbc.co.uk/news/uk-politics-21148282

EU collects Nobel Peace Prize in Oslo: http://www.bbc.co.uk/news/world-europe-20664167

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