Free movement of goods

Free movement of goods is the classical starting-point for EU internal market law. It concerns the removal of fiscal and regulatory barriers to trade between Member States, and it remains central to the Cambridge Part IB EU Law paper because it brings together the themes already studied in Weeks 1-4: sources, supremacy, direct effect, indirect effect, and State liability. The provisions are framed in spare language, but their interpretation has generated a sophisticated constitutional doctrine about how far national regulation must yield to market integration.

The basic structure is fourfold. First, Articles 28-30 TFEU establish the customs union and prohibit customs duties and charges having equivalent effect. Secondly, Articles 34 and 35 prohibit quantitative restrictions and measures having equivalent effect on imports and exports. Thirdly, Article 36 preserves specified public interest derogations, subject to the requirement that the measure must not amount to arbitrary discrimination or a disguised restriction on trade. Fourthly, the Court of Justice has recognised non-statutory justifications, most famously the mandatory requirements in Cassis de Dijon, for indistinctly applicable rules.

The central intellectual movement is from formal discrimination to market access. Early case law treated almost any national trading rule capable of impeding intra-Union trade as an Article 34 measure. Cassis then imposed a principle of mutual recognition: goods lawfully produced and marketed in one Member State should normally be admitted to another. Keck attempted to limit Article 34 by excluding certain selling arrangements, provided they applied equally in law and fact. Later cases, particularly Commission v Italy on trailers and Mickelsson and Roos on personal watercraft, reintroduced a market access vocabulary. The result is not a single neat test but a set of overlapping categories.

For Tripos purposes, free movement of goods is not merely a list of cases. A strong answer classifies the measure accurately, identifies whether it is fiscal or regulatory, asks whether there is a cross-border element, applies the appropriate Article, and then considers justification and proportionality. The examiner expects students to know Dassonville, Cassis, Keck and the modern market-access cases, but also to evaluate whether the Court has produced principled constitutional adjudication or an unstable compromise between integration and national regulatory autonomy.

Brexit does not make the topic obsolete. The retained EU law framework, and now the post-2023 domestic status of assimilated law, means that older EU principles still matter for UK lawyers in some contexts. More importantly, Cambridge EU Law continues to examine the internal logic of the EU legal order. The question is not whether the United Kingdom remains bound as a Member State, but how the doctrines worked, why they developed as they did, and what they reveal about the Court's conception of a common market.

The free movement of goods provisions were born out of the economic purpose of the original European Economic Community. The Treaty of Rome aimed to create a common market through the progressive elimination of barriers to trade between Member States. In goods, the most visible barriers were customs duties and quotas. These were the classic instruments of protectionism: tariffs made imports more expensive, while quotas limited the quantity of foreign goods entering the domestic market. The customs union therefore had both an external aspect, a common customs tariff towards third countries, and an internal aspect, the removal of duties and equivalent charges between Member States.

By the early 1970s, overt customs duties and quotas had largely disappeared. The more difficult question was how to treat national regulatory rules which did not explicitly discriminate against imports but nevertheless made cross-border trade more costly. Labelling rules, composition standards, licensing schemes, marketing restrictions and packaging requirements could all fragment the market. The Court of Justice's response was expansive. In Dassonville, it defined measures having equivalent effect to quantitative restrictions in sweeping terms, capturing rules capable of hindering intra-Community trade directly or indirectly, actually or potentially. This formula became the doctrinal engine of negative integration.

Cassis de Dijon marked the next stage. Germany required fruit liqueurs to have a minimum alcoholic strength. French Cassis did not comply. The Court held that obstacles arising from disparities between national laws must be accepted only where necessary to satisfy mandatory requirements such as consumer protection and fairness of commercial transactions. The judgment did two things at once. It recognised national regulatory interests, but it also constitutionalised mutual recognition. If goods are lawfully marketed in one Member State, a host Member State must have a convincing public interest reason for excluding them.

The Single European Act and the 1992 programme altered the institutional context. Negative integration through litigation was supplemented by legislative harmonisation. Yet the Court's Article 34 case law continued to expand, sometimes reaching national rules only remotely connected to cross-border trade. This expansion generated pressure for retrenchment. In Keck and Mithouard, the Court distinguished product requirements from certain selling arrangements, excluding the latter from Article 34 if they applied to all traders and affected domestic and imported goods in the same manner in law and fact. Keck was presented as a correction to the overuse of Article 34 by traders challenging ordinary commercial regulation.

The post-Keck period has been marked by refinement and uncertainty. The Court preserved Keck in many advertising and retailing cases, but it also developed a market access approach. Rules restricting how goods may be used, such as bans on trailers attached to motorcycles or practical prohibitions on personal watercraft, do not fit comfortably within the product requirement or selling arrangement categories. The Court therefore treated measures hindering access of imported goods to the market as Article 34 measures.

Brexit supplies a modern historical footnote. Before withdrawal, UK courts applied these doctrines as EU law with supremacy and direct effect. After withdrawal, retained EU law preserved much of the acquis initially, but the Retained EU Law (Revocation and Reform) Act 2023 changed terminology and weakened some domestic effects of EU-derived law. For Cambridge candidates, however, the historical trajectory remains essential: Article 34 began as a prohibition of national protectionism, became a wider discipline of regulatory diversity, was limited by Keck, and now operates through a hybrid of discrimination, product requirements and market access.

The first question is always whether the case concerns goods. Goods are products which can be valued in money and are capable of forming the subject of commercial transactions. The category is broad and includes electricity, waste and cultural objects, but not services or establishment. Mixed cases require care: a rule about the sale of a product may engage goods; a rule about the professional activity of the seller may engage services or establishment. In an examination problem, identify the commercial object and avoid assuming that every internal market question is Article 34.

Secondly, there must ordinarily be a cross-border element. The free movement provisions are concerned with trade between Member States, not purely internal situations. A wholly domestic dispute will normally fall outside Articles 34-36, although reverse discrimination may be tolerated as a matter of EU law. In practice, the threshold is low. A national rule that applies to all traders may still affect imports. A trader need not show that a particular consignment has actually been stopped; the Dassonville formula captures potential hindrance.

Thirdly, distinguish fiscal barriers from regulatory barriers. Customs duties and charges having equivalent effect fall under Article 30. Internal taxation falls under Article 110, which is not the focus of this note. Articles 34 and 35 deal with quantitative restrictions and measures having equivalent effect. A quantitative restriction is a total or partial restraint on imports or exports, such as a quota or ban. A measure having equivalent effect is broader: it includes national rules which, though not quotas, obstruct market access or impose additional burdens on imports.

Dassonville supplies the starting point for MEQRs: all trading rules enacted by Member States capable of hindering intra-Union trade, directly or indirectly, actually or potentially, are caught. This is deliberately capacious. It embraces distinctly applicable measures, which apply differently to imports and domestic goods, and indistinctly applicable measures, which apply formally to both but burden imports in practice. Distinctly applicable measures are especially suspect and normally require justification under Article 36. Indistinctly applicable measures may be justified by Article 36 or by mandatory requirements recognised by the Court.

The landmark cases form a coherent sequence only if one understands the problem the Court was trying to solve at each stage. Dassonville addressed a Belgian rule requiring Scotch whisky imported from France to be accompanied by a certificate of origin. Direct importers from Scotland could obtain the certificate more readily than parallel importers. The Court's answer was the famous broad formula for measures having equivalent effect. The significance is not simply that Belgium lost; it is that the Court treated potential hindrance to intra-Community trade as sufficient.

Cassis de Dijon is the constitutional pivot. Germany argued that its minimum alcohol rule applied equally to domestic and imported liqueurs and protected consumers. The Court accepted that national rules may pursue legitimate public interests, but held that mutual recognition is the starting point. The rule was disproportionate because consumer information could be supplied by labelling. Cassis thus combines market integration with a disciplined justificatory structure.

Commission v Denmark on beer and soft-drink containers shows the rise of environmental protection as a mandatory requirement. Denmark's deposit-and-return system pursued a legitimate environmental aim, but parts of the system were disproportionate because they imposed excessive burdens on imported producers. The case is important because it demonstrates that environmental protection may justify trade restrictions, but not without evidence and proportionality.

Buy Irish illustrates the breadth of State responsibility. Ireland sponsored a campaign to encourage consumers to buy Irish products. There was no conventional ban or quota. The Court nevertheless held that State-supported promotional activity favouring domestic goods was incompatible with Article 34. The case is a warning against confining Article 34 to formal legislation.

Keck and Mithouard was a deliberate attempt to curb the overextension of Article 34. French criminal rules prohibited resale at a loss. The Court held that certain selling arrangements fall outside Article 34 if they satisfy the two Keck conditions. The decision remains indispensable, but its boundaries are difficult. It works best for rules about when, where and by whom goods may be sold; it works less well for advertising bans, internet sales restrictions and product-use rules.

Familiapress demonstrates the factual sensitivity of Keck. Austria prohibited prize competitions in periodicals. The Court treated the rule as capable of impeding imports because such competitions formed part of the marketing strategy of foreign newspapers entering the Austrian market. The case shows that a rule dressed as a selling arrangement may in fact disadvantage imported goods.

Commission v Italy on motorcycle trailers and Mickelsson and Roos on personal watercraft mark the modern market-access phase. In both, the national rule concerned use of the product rather than its composition or sale. The Court held that such restrictions may fall within Article 34 where they hinder access to the market. Yet the Court did not adopt an unqualified economic freedom test. It allowed justification, particularly for road safety and environmental protection, subject to proportionality.

Together the cases reveal a persistent tension. If Article 34 is too broad, ordinary social and commercial regulation becomes presumptively unlawful unless justified. If it is too narrow, Member States can fragment the market through formally equal rules. The Court's jurisprudence is best understood as an attempt to police that boundary without reducing it to a single mechanical formula.

See practice questions section below.

See further reading section below.