#16130 - Free Movement - European Law

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:
- 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?
- No – Van de Haar (“Article 34 TFEU does not distinguish measures according to the degree to which trade between Member States is affected”)
- 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:
- 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.

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.

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:

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
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:
- Facts: action was taken pursuant to Irish laws to prevent students’ unions in Dublin from providing abortion information in London.
- 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...

#16130 - Free Movement - European Law

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