Analysis of the Free Movement of Goods and Services Policy

Analysis of the Free Movement of Goods and Services PolicyThe Court of Justice of the European Union (CJEU) has developed an long body of case natural law on needy stool in relation to persons, goods, go and government activity. Over the years, the Courts onset to free terminatement as evolved and altered to the modern European Union (EU) today. Through similitude of the case law it will be clear that how the Court deals with free accomplishment is similar in all the areas of persons, goods, services and establishment. In the beginning the CJEU would only jar against down legislation which was discriminatory to nationals from different Member States. It then began to strike down rules that were non-discriminatory and more than recently rules that act as a barrier or hindrance to market nark. Analysing these areas of the Courts jurisprudence, it will be evident that the Courts early approach was a more literal interpretation of the treaties towards a more teleological approach that explodeed the Courts powers tho perhaps this is ultimately needed if the CJEU was to every achieve the Internal market.1As 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 steering v French Republic4in relation to workers and Humblot5 with regards to goods. This approach was echoed across the freedoms.6It was clear though, that from the jurisprudence across these areas striking down barriers that were obliviously discriminatory would non be enough as frequently there was national legislation that was indirectly discriminating against nationals.7 Therefore indirect disparity was present from the beginning to tackle the double burden that was often move by Member States on free movement. This move by the Court is comparable across the freedoms such as Uglioa8 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.10The case of Dassonville11 further increased the Courts ability to strike down national legislation for being discriminatory measures having equivalent effect in relation to goods.12 This is raise 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 CJEUs application of a wider definition in Dassonville14 is comparable to the other(a) 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.18The early jurisprudence shows that the Court was not willing to strike down non-discriminatory legislation such as in chemical substance Farmaceutici.19This 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 drift to fulfil the aims of the treaty provision, i n so far as to create an successful internal market.21 This resulted in further autonomy for the CJEU through case law in 80s but mainly 90s.22The 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.24Bosman 25 open up this mentation within free movement of persons and expanded the Courts ability to strike down national legislation.26 Cassis de Dijon27had a big effect on the area of non-discriminatory national rules arguably more than Bosman28, when you equal 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 Courts ability to declare a barrier to trade unlawful.30In a sense it has reduced the need for harmonisation and instead has advanced the internal market ideals through case law.31In comparability 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 Keck33 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 Courts decision meant that the contradict 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 couldnt 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 impe diethylstilbestrol free movement is struck down.36 As in the earlier cases and to the other are as 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.38Similarly, the free movement of establishment the old point of view discrimination only can be seen in Commission v Belgium39which allowed member states to make their own rules in the absence of Community harmonisation. Klopp40 shows the change in the Courts jurisprudence for establishment in the same way as the other freedoms. The key case here is Gebhard41which repeated the view the Court highlighted in Sager.42 According to Spaventa, Gebhard43 was not only an expansion but a qualitative skip for free movement rights.44 It tells 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 argum ent, according to Connor, of ever full achieving an Internal Market on the basis of discrimination alone.45It is important note that as the CJEUs capacity has increased across the free movement, the Member States ability to justify them continued to grow exponentially.46 The Court has been clear that the intromission 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 perspicacity of balance.48The Court will essential look to see if the measure can be justified and if the restriction was appropriate and ensure that it doesnt 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 shield the justifications continue to grow.51In recent years the Court has again expanded free movement provisions through the market access exam.52 The Court cracking their approach from Keck53in the cases of Commission v Italy54and Mickelson and Roos55and 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 Courts 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 CJEUs liberalising view of the free movement school of thought 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 little severe than the restr ictions in Commission v Italy and Mickelson.60The 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.66To 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 isnt 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.671 Eleanor Spaventa, From Gebhard to carpenter Towards a Non-Economic European Constitution, (2004) 41 Common Market Law Review 7432 Paul Craig and Grainne De Brca, EU Law Texts, casefuls, And Materials (6th edn, OUP 2015) 758 3 Consolidated version of the Treaty on the Functioning of the European Union 2012 OJ OJ C326Article 26 and Article 45 Treaty of the Functioning of the European Union4 Case 167/73 Commission of the European Communities v. French Republic 1974 ECR 3595 Case 112/84 Michel Humblot v Directeur des services fiscau 1985 ECR 13676 Case 8/74 Procureur du Roi v Benot and Gustave Dassonville 1974 ECR 8377 Tim Connor, Goods Persons Services and Capital in the European Union/ Jurisprudential Routes to Free Movement (2010) German Law Journal 1598 Case 15/69 Wrttembergische Milchverwertung-Sdmilch AG v Salvatore Ugliola 1970 ECR 3639 n7, clxv10 Case 71/76 Jean Thieffrey v. Conseil de lOrdre des Avocats la cour de Paris 1977 ECR 765 Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid 1974 ECR 12211 n612 Ailbhe ONeill, The Path Not Taken The Global Approach to the Free Movement of Persons, (200) 3(1) Trinity College Law Review 11113 Case 53/76 Procureur de la Rpub lique de Besanon 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 492914 n615 Case C-55/94 Gebhard v Consiglio dellOrdine degli Avvocati e Procuratori di Milano 1995 ECR I-416516 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 91417 Article 36, 45, 52 of the TFEU18 Laurence W. Gormley, Free Movement of Goods within the EU Some issues and an Irish Persepctive, (2011) 46(1) The Irish Jurist 7419 Case 140/79 Chemical Farmaceutici SpA v DAF SpA 1981 ECR 120 n12, 11221 n7, 16922 Peter Oliver and Wulf-Henning Roth, The Internal Market and the Four Freedoms (2003) 41 Common Market Law Review 40723 n12, 11224 n12, 11225 Case C-415/93 Union royale belge des socits de football association ASBL v Jean- Marc Bosman, Royal club ligeois SA v Jean-Marc Bosman and others and Union des associations europennes de football (UEFA) v Jean-Marc Bosman 1995 ECR I-492126 Case C-190/98 Volker Graf v Filzmoser Maschinenbau GmbH 2000 ECR I-493Case C-464/02 Commission of the European Communites v. Kingdom of Denmark 2005 ECR I-792927 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fr Branntwein (Cassis de Dijon) 1979 ECR 64928 n2529 Andrew McGee and Stephen Weatherhill, The Evolution of the Single Market Harmonisation or Liberalisation (1990) 53(5) The Modern Law Review 57830 ibid, 58131 ibid, 58132 Sunday Trading Cases Case C-145/88 Torfaen Borough Council v B Q plc 1989 ECR 3851 Case C-169/91 Council of the metropolis of Stoke-on-Trent and Norwich City Council v B Q plc 1992 ECR I-663533 Cases C-267 and 268/91 Criminal proceedings against Bernard Keck and Daniel Mithouard1993 ECR I-609734 n12, 123-12435 n12, 123-12436 Case 427/85 EC Commission v. Germany 1988 ECR 112337 Case C-76/90 Man fred Sger v Dennemeyer Co. Ltd 1991 ECR I-422138 ibid39 Case 221/85 Commission of the European Communities v. Kingdom of Belgium 1987 ECR 71940 Case 107/83 Order des avocats au Barreau de Paris v Onno Klopp 1984 ECR 297141 Case 55/94 Gebhard v Consiglio dellOrdine degli Avvocati e Procuratori di Milano 1995 ECR I-416542 n12, 11243 n4144 Eleanor Spaventa, From Gebhard to Carpenter Towards a Non-Economic European Constitution, (2004) 41 Common Market Law Review 74345 n7, 16846n18, 7447 n29, 58148 n7, 18249 n7, 195 C-434/04, Criminal proceedings against Jan-Erik Anders Ahokainen, Mati Leppik Jan-Erik Anders Ahokainen,2006 I-917150 n16, 92551 n22, 43452 Max S. Jansson and Harri Kalimo, De Minimis Meets Market admission price Transformations in the Substance and in the Syntax Of EU Free Movement Law?(2014) 51(2) Common Market Review 52353 n3354 Case C-110/05 Re Motorcycle Trailers Commission of the European Communities v Italy 2009 2 CMLR 3455 Case C-142/05 klagaren v Percy Mickelsso n and Joakim Roos 2009 ECR I-427356 n16, 91557 n16, 92358 Case C-400/08 Commission of the European Communities v Spain 1995 ECR I-416559 n2, 80660 n5255661 n16, 92562 A. Tryfonidou, Further Steps on the Road to convergence Among the Market Freedoms, (2010) 35 European Law Review 3663 ibid, 4964 Pedro Caro de Sousa, Quest for the Holy Grail-Is a Unified Approach to the Market Freedoms and European Citizenship warrant? (2014) 20(4)European Law Journal 49965 n tryfonidou5066 Sacha Prechal and Sybe De Vries, Seamless Web of Judicial Protection in the Internal Market? (2009) 5 European Law Review67 Damian Chalmers, European Union Law Text and Materials (3rd edn, Cambridge University Press 2014)