What is the principle underpinning Free Movement of Goods?
“The question then is what test should be applied in order to determine whether a measure falls
within the scope of Article 34 TFEU. There is one guiding principle which seems to provide an
appropriate test: that principle is that all undertakings which engage in a legitimate economic
activity in a Member State should have unfettered access to the whole of the EU market, unless there
is a valid reason for denying them full access to a part of that market. In spite of occasional
inconsistencies in the reasoning of certain judgements, that seems to be the underlying principle
which has inspired the Court’s approach from Dassonville through Cassis de Dijon to Keck. Virtually
all of the cases are, in their result, consistent with the principle, even though some of them appear to
be based on different reasoning.”
Advocate General Jacobs in Société d’Importation Edouard Leclerc-Siplec v TFI Publicité SA
and M6 Publicité SA (1995).
1. Introduction:
Article 34 TFEU states that quantitative restrictions on imports and all measures
having equivalent effect shall be prohibited between MS.
AG Jacobs – purports to demonstrate that the principle underpinning Article
34 is market access, in other words, whether they hinder access to a given
market within the Union.
Essay will analyse the complex case law in this area, namely the progression from
Dassonville to Cassis de Dijon to Keck and beyond.
Despite the apparent turn taken by the CJEU in Keck, subsequent cases such
as Commission v Italy and Mickelsson and Roos are arguably indicative of the
law re-centering around the notion of market access.
BUT – as this essay will argue, the Court’s judgement in Keck cannot be
characterised as a mere occasional inconsistency but in fact establishes an entirely
new approach to be applied under Article 34, relying on the concept of whether the
measure has a discriminatory effect or not.
As such, the approach to be applied is not based purely on the concept of
market access, but rather the question of whether the measure has a
discriminatory effect is not only rooted in the Treaty but also equally evident
in the case law.
By failing to recognise this, disguising their approach as “market access”, the
Court in fact conceals what is truly going on.
The result is a lack of coherence in the case law.
The Court should recognise that divorcing free movement from inequality makes
little sense (Davies) and given its inherent risk of overuse, should cease deferring
blanketly to the notion of market access.
2. No such thing as EU Market:
Preliminary fundamental point = as Enchelmaier aptly puts, there is no such thing as
an EU market on its own.
There are instead 27 national markets governed by national law, the friction
between them reduced by a layer of Union law through, inter alia, the free
movement of goods framework.
What’s more, the concept of “market access” has not adequately been defined in the
case law, with much academic discussion centering around its content.
Taking account of Article 26 TFEU, which conceives of the MS as markets,
this essay will proceed on the basis that “market access” is simply free
movement between MS.
3. Dassonville and Cassis de Dijon:
The concept of measures having equivalent effect to quantitative restrictions
(MEQRs) under Article 34 was first defined in C-8/74 Dassonville as all measure
“The question then is what test should be applied in order to determine whether a measure falls
within the scope of Article 34 TFEU. There is one guiding principle which seems to provide an
appropriate test: that principle is that all undertakings which engage in a legitimate economic
activity in a Member State should have unfettered access to the whole of the EU market, unless there
is a valid reason for denying them full access to a part of that market. In spite of occasional
inconsistencies in the reasoning of certain judgements, that seems to be the underlying principle
which has inspired the Court’s approach from Dassonville through Cassis de Dijon to Keck. Virtually
all of the cases are, in their result, consistent with the principle, even though some of them appear to
be based on different reasoning.”
Advocate General Jacobs in Société d’Importation Edouard Leclerc-Siplec v TFI Publicité SA
and M6 Publicité SA (1995).
1. Introduction:
Article 34 TFEU states that quantitative restrictions on imports and all measures
having equivalent effect shall be prohibited between MS.
AG Jacobs – purports to demonstrate that the principle underpinning Article
34 is market access, in other words, whether they hinder access to a given
market within the Union.
Essay will analyse the complex case law in this area, namely the progression from
Dassonville to Cassis de Dijon to Keck and beyond.
Despite the apparent turn taken by the CJEU in Keck, subsequent cases such
as Commission v Italy and Mickelsson and Roos are arguably indicative of the
law re-centering around the notion of market access.
BUT – as this essay will argue, the Court’s judgement in Keck cannot be
characterised as a mere occasional inconsistency but in fact establishes an entirely
new approach to be applied under Article 34, relying on the concept of whether the
measure has a discriminatory effect or not.
As such, the approach to be applied is not based purely on the concept of
market access, but rather the question of whether the measure has a
discriminatory effect is not only rooted in the Treaty but also equally evident
in the case law.
By failing to recognise this, disguising their approach as “market access”, the
Court in fact conceals what is truly going on.
The result is a lack of coherence in the case law.
The Court should recognise that divorcing free movement from inequality makes
little sense (Davies) and given its inherent risk of overuse, should cease deferring
blanketly to the notion of market access.
2. No such thing as EU Market:
Preliminary fundamental point = as Enchelmaier aptly puts, there is no such thing as
an EU market on its own.
There are instead 27 national markets governed by national law, the friction
between them reduced by a layer of Union law through, inter alia, the free
movement of goods framework.
What’s more, the concept of “market access” has not adequately been defined in the
case law, with much academic discussion centering around its content.
Taking account of Article 26 TFEU, which conceives of the MS as markets,
this essay will proceed on the basis that “market access” is simply free
movement between MS.
3. Dassonville and Cassis de Dijon:
The concept of measures having equivalent effect to quantitative restrictions
(MEQRs) under Article 34 was first defined in C-8/74 Dassonville as all measure
