Free Movement of Goods Problem Question Structure

Posted by Catherine Robinson on August 5, 2021

2-min read

EU Law - EU Substantive Law - Free Movement of Goods Law - Problem Question

This article takes you through the steps that the CJEU goes through when determining whether a measure implemented by an EU member state has breached the treaty provisions on free movement of goods.

How to Get a First in Law

Basic problem question structure:

Is the case within the scope of the EU free movement provisions?
Are the free movement provisions directly effective?
Have the free movement provisions been breached?
Are there any relevant justifications for the breach?
Is the restriction of movement proportional?

1) Scope

The provisions on free movement only apply to cases involving movement between the EU's member states. Wholly internal situations are not within the scope of the free movement provisions, see e.g. Saunders (C-175/78).

2) Direct effect

The provisions on free movement of goods are vertically directly effective, meaning private parties may rely on them against the state. However, they also apply to bodies responsible for certifying products, see Fra.bo (C-171/11), as well as private parties controlled by the state, see e.g. Buy Irish (C-249/81).

Under Article 4(3) TEU, EU member states must co-operate with the facilitation of treaty obligations. This means that they may have to prevent private parties from creating obstacles to free movement of goods, see e.g. Schmidberger (C-112/00) and Commission v France (Spanish Strawberries) (C-265/95).

3) Breach

There are three different types of restrictions on free movement of goods:

Distinctly applicable measures: an EU member state implements a measure that directly discriminates on the basis of nationality, e.g. a health inspection for imported products only.
Indistinctly applicable measures: the measure has the effect of discriminating against goods from other EU member states even though it does not explicitly appear to discriminate, e.g. product requirements.
Obstacles: these measures are non-discriminatory.

Fiscal measures (monetary charges imposed on products)

Article 30 TFEU prohibits customs duties and all charges having equivalent effect to a customs duty (CEEs).

EU member states cannot justify customs duties or CEEs, see e.g. Diamantarbeiders (C-2/69).
Charges will not be CEEs if either:

The importer or exporter is being provided with a genuine service in return for the charge, see e.g. Commission v Italy (Statistical Levy) (C-24/68) and Belgium Warehousing (C-132/82); or
The charge is for a health inspection, although the test for this is very strict: Bauhuis (C-46/76). See also: Commission v Germany (C-18/87).

2. Article 110 TFEU prohibits:

Discriminating against similar imported goods through taxation.
Providing indirect protection to domestic goods that are in competition with imported goods through taxation.

Non-fiscal measures - Article 34 TFEU (measures that are not monetary)

Article 34 prohibits quantitative restrictions and all measures having equivalent effect to a quantitative restriction (MEEs). Dassonville (C-8/74) set out a very broad formula for what constitutes an MEE. This has since been refined in a series of cases:

Cassis de Dijon (C-120/78) - mutual recognition (+ mandatory requirements). Following Cassis, a distinction was made between:

Distinctly applicable MEEs (direct discrimination); and
Indistinctly applicable MEEs (indirect discrimination).

Keck (C-267/91) - introduction of a new category of rules: certain selling arrangements (CSAs). These fall outside of the scope of Article 34.

Commission v Italy (Trailers) (C-110/05) and Mickelsson and Roos (C-142/05) -market access test for restrictions on use.

4) Justifications

Justifications are set out in Article 36 TFEU. Another category of justifications called mandatory requirements were set out in Cassis de Dijon.

5) Proportionality test

Two questions:

Is the measure suitable to achieve its aim? (Suitability test)
Is the measure necessary to achieve its aim, or could a less restrictive measure work? (Necessity test)

In order to write a first class EU Law essay on free movement of goods, you must follow each of these steps. Please feel free to leave a comment if there's anything you'd like clarifying!

Disclaimer:

The information provided in this blog post is based on the research I carried out for my law degree which I completed in 2020. I accept no responsibility for errors or omissions. Legal principles and interpretations may change over time, and the content presented here may not reflect the most current developments in UK contract law. This information is intended for general informational purposes only and should not be considered as legal advice or relied upon as a substitute for professional legal counsel. For the most up-to-date and accurate legal information or advice, it is advisable to consult with a qualified legal professional who is knowledgeable about the latest legal developments and can provide guidance specific to your situation.