Analysis of the Free Movement of Goods and Services Policy

The Court of Justice of the European Union (CJEU) has developed an extensive body of case law on free movement in relation to persons, goods, services and establishment. Over the years, the Court's approach to free movement as evolved and adapted to the modern European Union (EU) today. Through comparison of the case law it will be clear that how the Court deals with free movement is similar in all the areas of persons, goods, services and establishment. In the beginning the CJEU would only strike down legislation which was discriminatory to nationals from other Member States. It then began to strike down rules that were non-discriminatory and more recently rules that act as a barrier or hindrance to market access. Analysing these areas of the Court's jurisprudence, it will be evident that the Court's early approach was a more literal interpretation of the treaties towards a more teleological approach that expanded the Courts powers but perhaps this is ultimately needed if the CJEU was to every achieve the Internal Market.[1]

As already mentioned in the early case law the CJEU would strike down national legislation due to them being discriminatory on the basis of nationality.[2] This approach was clearly based on the treaty articles that prohibited this.[3] Rules where initially struck down because they were obviously discriminatory such as in Commission v French Republic[4]in relation to workers and Humblot[5] with regards to goods. This approach was echoed across the freedoms.[6]

It was clear though, that from the jurisprudence across these areas striking down barriers that were obliviously discriminatory would not be enough as often there was national legislation that was indirectly discriminating against nationals.[7] Therefore 'indirect' discrimination was present from the beginning to tackle the double burden that was often placed by Member States on free movement. This move by the Court is comparable across the freedoms such as Uglioa[8] in relation to workers. Critically though the Court might have created 'indirect' discrimination criteria to stop dual burden but this has raised problems from the Court as not all indirectly discriminatory rules create such a burden.[9] Even with these potential issues the practice was echoed across the jurisprudence of goods, services and establishment.[10]

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The case of Dassonville[11] further increased the Court's ability to strike down national legislation for being discriminatory measures having equivalent effect in relation to goods.[12] This is interesting as the expansion of the Court powers arguably goes beyond a literal interpretation of the treaty articles. It had a big effect not only on the subsequent cases regarding goods but also free movement of persons, services and establishment.[13] The CJEU's application of a wider definition in Dassonville[14] is comparable to the other freedoms particularly services and establishment.[15] The broader scope the Court has given themselves across the freedoms is a move towards a more cohesive internal market.

On the other hand though, the Court was always very clear though from the beginning that free movement of persons, goods and services are not absolute.[16] This is evident from the Treaty articles in so far as certain discriminatory restrictions can be justified.[17] This indication by the Court might initially seem to be just following the Treaties but ultimately, they expanded the remit of these justifications in relation to indirectly discriminatory restrictions in all of the areas through case law.[18]

The early jurisprudence shows that the Court was not willing to strike down non-discriminatory legislation such as in Chemical Farmaceutici.[19]This all changed though and the Court no longer stopped at discrimination but expanded to striking down barriers that were non-discriminatory.[20] This was possibly in order to fulfil the aims of the treaty provision, in so far as to create an successful internal market.[21] This resulted in further autonomy for the CJEU through case law in 80's but mainly 90's.[22]

The CJEU developed an approach to free movement that restrictions which are non-discriminatory in nature fall within the scope of the relevant treaty articles and have to be examined for validity.[23] Similarly to the earlier jurisprudence the Court applies this thinking to all the free movement areas.[24]Bosman [25] open up this idea within free movement of persons and expanded the Court's ability to strike down national legislation.[26] Cassis de Dijon[27]had a big effect on the area of non-discriminatory national rules arguably more than Bosman[28], when you compare the effect Cassis de Dijon had.It is seen as a landmark decision in the area of indistinctly applicable restrictions.[29] It and the subsequent cases have extended the Court's ability to declare a barrier to trade unlawful.[30]In a sense it has reduced the need for harmonisation and instead has advanced the internal market ideals through case law.[31]

In comparison to this development within the free movement of persons, Cassis de Dijon resulted in a surge of cases.[32] This resulted in CJEU departing from the previous case law in Keck[33] to deal with the flood of cases. It is interesting to note that at the time of the Cassis de Dijon judgement was at a time of legislative stagnation which was impeding the development of the Internal Market.[34] Therefore the Court's decision meant that the negative integration rate was speed up.[35] Arguably the Court was attempting to full the requirements of Article 26 of the TFEU and but as they couldn't do this within the treaty itself they needed to expand the parameters of their power.

Similar to the free movement of persons and goods, services jurisprudence developed to include non-discriminatory barriers, meaning that anything which impedes free movement is struck down.[36] As in the earlier cases and to the other areas where it is seen to be a dual barrier that barrier is struck down such as in Sager.[37] Interestingly AG Jacobs makes a direct comparison to Cassis di Dijon here and that cases approach to non-discriminatory restrictions.[38]

Similarly, the free movement of establishment the old point of view discrimination only can be seen in Commission v Belgium[39]which allowed member states to make their own rules in the absence of Community harmonisation. Klopp[40] shows the change in the Court's jurisprudence for establishment in the same way as the other freedoms. The key case here is Gebhard[41]which repeated the view the Court highlighted in Sager.[42] According to Spaventa, Gebhard[43] was not only an expansion but a "qualitative leap" for free movement rights.[44] It indicates a further move away from a literal interpretation towards a more teleological approach to the internal market that can be seen across the freedoms. The success of the implementation of non-discriminatory ground has dispelled any argument, according to Connor, of ever full achieving an Internal Market on the basis of discrimination alone.[45]

It is important note that as the CJEU's capacity has increased across the free movement, the Member State's ability to justify them continued to grow exponentially.[46] The Court has been clear that the creation of the internal market through the harmonisation of laws does not mean that all barriers to trade will be abolished.[47] Instead they will engage in an "assessment of balance".[48]The Court will essential look to see if the measure can be justified and if the restriction was appropriate and ensure that it doesn't go beyond what is necessary.[49] The more the CJEU gives itself the ability to strike down legislation, the more the Court creates justifications through case law to allow for this but it needs to be careful to ensure that it does not step into the legislative realm.[50] The increase in ways to justify restrictions has been demonstrated across free movement and as the Court expands its parameters into the market access test the justifications continue to grow.[51]

In recent years the Court has again expanded free movement provisions through the market access test.[52] The Court refined their approach from Keck[53]in the cases of Commission v Italy[54]and Mickelson and Roos[55]and embraced the market access test.[56] Not only does this test include measures that are a barrier to goods entering the market but also once the good is in the market.[57] This shows a clear expansion of the Court's powers in relation to free movement of goods. Comparing this development to the other areas, establishment is  another area where this test has clearly been discussed and accepted by the court in Commission v Spain.[58] These cases demonstrate the CJEU's liberalising view of the free movement doctrine in recent years.[59] In comparison, the case law in the other areas of free movement seems to suggest that the market access test is are less severe than the restrictions in Commission v Italy and Mickelson.[60]

The market access test has be subject to criticism with some questioning the basis of the test and whether the CEJU is potentially violating the separation of powers within the EU.[61] Some academics believe this market access test is a development as a result of Union Citizenship and this is the basis for the test.[62] The test marks a move towards convergence and harmonisation of the internal market.[63] The idea of citizenship seems to have taken hold and it is evident that it has had an impact on free movement.[64] Tryfonidou argues that these judgements indicate a move away from assessing impact of barriers on cross-border trade to promoting free movement of commerce by Union Citizens.[65] Ultimately the jurisprudence shows that the market access test has become the main principle for the free movement cases.[66]

To conclude, the CJEU has moved from a discriminatory based approach to restrictions on the free movement of goods and services to non-discriminatory one to a market access test. The jurisprudence in the area isn't clear cut but the general understanding of academics seems to be that the move towards a non-discriminatory approach was needed to have a successful internal market. The subsequent move to a market access test seems to be founded on the idea of union citizenship and perhaps a deeper idea of ultimately, in so far, as possible having the freedoms converge. Through comparison, it is clear that each section of the free market is different but ultimately the CJEU feels similar. What is evident though is that the removal of regulatory barriers CJEU feels is needed, across the free movement of persons, goods, services and establishment, in order to fulfil the aims of the internal market.[67]

[1] Eleanor Spaventa, 'From Gebhard to Carpenter: Towards a Non-Economic European Constitution', (2004) 41 Common Market Law Review 743

[2] Paul Craig and Grainne De Búrca, EU Law: Texts, Cases, And Materials (6^th edn, OUP 2015) 758

[3] Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ OJ C326

Article 26 and Article 45 Treaty of the Functioning of the European Union

[4] Case 167/73 Commission of the European Communities v. French Republic [1974] ECR 359

[5] Case 112/84 Michel Humblot v Directeur des services fiscau [1985] ECR 1367

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

[7] Tim Connor, 'Goods Persons Services and Capital in the European Union/ Jurisprudential Routes to Free Movement' (2010) German Law Journal 159

[8] Case 15/69 Württembergische Milchverwertung-Südmilch AG v Salvatore Ugliola [1970] ECR 363

[9] n7, 165

[10] Case 71/76 Jean Thieffrey v. Conseil de l'Ordre des Avocatsà la cour de Paris [1977] ECR 765; Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 122

[11] n6

[12] Ailbhe O'Neill, 'The Path Not Taken: The Global Approach to the Free Movement of Persons', (200) 3(1) Trinity College Law Review 111

[13] Case 53/76 Procureur de la République de Besançon v Les Sieurs Bouhelier and others [1977] ECR 197; Case 249/81 Commission of the European Communities v Ireland (Buy Irish Case) [1982] ECR 4005; Case 45/87 Commission of the European Communities v Ireland (Dunalk Water Supply) [1988] ECR 4929

[14] n6

[15] Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165

[16] Eleanor Spaventa, 'Leaving Keck behind? The free movement of goods after the rulings in Commission v Italy and Mickelsson and Roos' (2009) 34(6) European Law Review 914

[17] Article 36, 45, 52 of the TFEU

[18] Laurence W. Gormley, 'Free Movement of Goods within the EU - Some issues and an Irish Persepctive', (2011) 46(1) The Irish Jurist 74

[19] Case 140/79 Chemical Farmaceutici SpA v DAF SpA [1981] ECR 1

[20] n12, 112

[21] n7, 169

[22] Peter Oliver and Wulf-Henning Roth, 'The Internal Market and the Four Freedoms' (2003) 41 Common Market Law Review 407

[23] n12, 112

[24] n12, 112

[25] Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-4921

[26] Case C-190/98 Volker Graf v Filzmoser Maschinenbau GmbH [2000] ECR I-493;Case C-464/02 Commission of the European Communites v. Kingdom of Denmark [2005] ECR I-7929;

[27] Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649

[28] n25

[29] Andrew McGee and Stephen Weatherhill, 'The Evolution of the Single Market - Harmonisation or Liberalisation'  (1990) 53(5) The Modern Law Review 578

[30] ibid, 581

[31] ibid, 581

[32] Sunday Trading Cases: Case C-145/88 Torfaen Borough Council v B & Q plc [1989] ECR 3851; Case C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc [1992] ECR I-6635

[33] Cases C-267 and 268/91 Criminal proceedings against Bernard Keck and Daniel Mithouard[1993] ECR I-6097

[34] n12, 123-124

[35] n12, 123-124

[36] Case 427/85 EC Commission v. Germany [1988] ECR 1123

[37] Case C-76/90 Manfred Säger v Dennemeyer & Co. Ltd  [1991] ECR I-4221

[38] ibid

[39] Case 221/85 Commission of the European Communities v. Kingdom of Belgium [1987] ECR 719

[40] Case 107/83 Order des avocats au Barreau de Paris v Onno Klopp [1984] ECR 2971

[41] Case 55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165

[42] n12, 112

[43] n41

[44] Eleanor Spaventa, 'From Gebhard to Carpenter: Towards a Non-Economic European Constitution', (2004) 41 Common Market Law Review 743

[45] n7, 168

[46]n18, 74

[47] n29, 581

[48] n7, 182

[49] n7, 195; C-434/04, Criminal proceedings against Jan-Erik Anders Ahokainen, Mati Leppik Jan-Erik Anders Ahokainen,[2006] I-9171

[50] n16, 925

[51] n22, 434

[52] Max S. Jansson and Harri Kalimo, 'De Minimis Meets "Market Access": Transformations in the Substance - and in the Syntax - Of EU Free Movement Law?'(2014) 51(2) Common Market Review 523

[53] n33

[54] Case C-110/05 Re Motorcycle Trailers: Commission of the European Communities v Italy [2009] 2 CMLR 34

[55] Case C-142/05 Åklagaren v Percy Mickelsson and Joakim Roos [2009] ECR I-4273

[56] n16, 915

[57] n16, 923

[58] Case C-400/08 Commission of the European Communities v Spain [1995] ECR I-4165

[59] n2, 806

[60] n52556

[61] n16, 925

[62] A. Tryfonidou, 'Further Steps on the Road to Convergence Among the Market Freedoms', (2010) 35 European Law Review 36

[63] ibid, 49

[64] Pedro Caro de Sousa, 'Quest for the Holy Grail-Is a Unified Approach to the Market Freedoms and European Citizenship Justified?' (2014) 20(4)European Law Journal 499

[65] n tryfonidou50

[66] Sacha Prechal and Sybe De Vries, 'Seamless Web of Judicial Protection in the Internal Market?' (2009) 5 European Law Review

[67] Damian Chalmers, European Union Law: Text and Materials (3^rd edn, Cambridge University Press 2014)