Free movement of goods

Free movement of goods is the classic laboratory of EU constitutional law. It translates the internal market project into enforceable legal doctrine: customs duties are prohibited, quantitative restrictions are prohibited, and national regulatory measures which hinder cross-border trade must be justified or disapplied. For Durham first-year purposes, this topic is not a self-contained commercial law subject. It is the practical continuation of Weeks 1 to 4. Sources and institutions explain why Treaty provisions bind Member States; supremacy explains why inconsistent national rules yield; direct effect explains how traders invoke Articles 30, 34 and 35 TFEU; and Francovich explains the remedial consequence where a Member State breaches EU law seriously enough to cause loss.

The core architecture is simple. Article 30 TFEU prohibits customs duties and charges having equivalent effect. Articles 34 and 35 prohibit quantitative restrictions and measures having equivalent effect on imports and exports respectively. Article 36 permits derogations on specified public-interest grounds, provided the measure is not a means of arbitrary discrimination or disguised restriction on trade. In addition, Cassis de Dijon created judge-made mandatory requirements, allowing certain indistinctly applicable national rules to survive where they pursue legitimate regulatory interests proportionately. The main doctrinal difficulty is not the existence of these provisions but the scope of Article 34: when is ordinary domestic regulation a market access restriction, and when is it merely a permissible background condition of doing business?

The case law has moved through three phases. Dassonville stated Article 34 in famously broad terms: any trading rule capable of hindering intra-Union trade, directly or indirectly, actually or potentially, is caught. Cassis then added mutual recognition: goods lawfully marketed in one Member State should generally circulate in another unless justified. Keck attempted to limit over-extension by excluding certain selling arrangements from Article 34 if they apply to all traders and affect domestic and imported goods in the same manner in law and fact. Later cases, especially Commission v Italy (Trailers) and Mickelsson and Roos, reframed the inquiry around market access, particularly where national rules regulate the use rather than intrinsic characteristics of goods.

Examination questions usually test classification, justification and proportionality. A strong answer identifies the relevant Treaty provision, distinguishes product requirements from selling arrangements and use restrictions, asks whether the measure impedes market access, and then assesses justification under Article 36 or mandatory requirements. The best Durham answers also explain the constitutional significance: the Court of Justice used free movement to constitutionalise market integration, while national regulatory autonomy survives only within the discipline of non-discrimination and proportionality. Brexit does not make the topic obsolete. It remains central to understanding pre-withdrawal rights, retained or assimilated EU law controversies, the Northern Ireland/Windsor Framework context, and the general method by which EU law polices national barriers to trade.

The free movement of goods provisions were drafted against the memory of protectionist fragmentation in Europe. The original EEC project treated tariff removal as necessary but insufficient. Tariffs are visible barriers; regulation is more elusive. A state may remove customs duties while maintaining rules on composition, packaging, advertising, pricing, licensing or use that make foreign goods commercially impracticable. The Treaty therefore prohibited not only customs duties and quotas but also measures having equivalent effect. The genius, and controversy, of the Court of Justice lay in giving that phrase constitutional breadth.

Early customs cases established that Member States could not disguise revenue-raising or protective devices as administrative fees. The Court treated charges having equivalent effect with severity: even small pecuniary burdens imposed by reason of a frontier crossing undermine the customs union. The logic is formal and absolute. Unlike Article 34, Article 30 is not balanced against general public-interest justifications. A charge is either a customs duty or charge having equivalent effect, or it is not; if it is, it is prohibited unless it falls into narrow categories such as payment for a genuine optional service or a charge for inspections required by EU law.

The more difficult history concerns non-fiscal barriers. Directive 70/50, now spent but historically important, distinguished distinctly applicable measures, targeting imports, from indistinctly applicable measures, applying to domestic and imported goods alike. The Court did not confine Article 34 to discrimination. Dassonville in 1974 produced a deliberately capacious definition. That made sense in a Community committed to market integration but lacking comprehensive harmonisation. If each Member State could impose its own technical requirements on goods, the common market would be reduced to a series of national markets connected only in theory.

Cassis de Dijon in 1979 supplied the intellectual core of modern internal market law. Germany required fruit liqueurs to contain a minimum alcohol content; the French product Cassis had less. The rule applied to domestic and imported goods alike, but it excluded a lawfully marketed French product. The Court held that, absent harmonisation, goods lawfully marketed in one Member State should in principle be admitted into another. This was mutual recognition. At the same time, the Court acknowledged that Member States retained legitimate regulatory interests, expressed as mandatory requirements. Cassis therefore combined integration and autonomy: it widened Article 34 but softened its impact through justification.

By the late 1980s and early 1990s, traders began invoking Article 34 against a wide range of national commercial rules, including Sunday trading restrictions. The Court faced the charge that every rule affecting profitability or consumer demand could become an EU constitutional issue. Keck was the reaction. It attempted to remove from Article 34 certain selling arrangements, provided they applied to all traders and affected domestic and imported goods equally in law and fact. The line proved difficult. Advertising bans, internet sales restrictions, use restrictions and rules affecting market entry did not fit comfortably into the product requirement/selling arrangement binary.

The modern position is consequently a synthesis rather than a single test. Discriminatory measures are caught readily. Product requirements are caught because they impose dual regulatory burdens on imports. Selling arrangements may fall outside Article 34 if Keck is satisfied. Use restrictions and other measures are assessed by market access analysis. The result is doctrinally untidy but constitutionally revealing. The Court seeks to prevent national measures from insulating domestic markets, while avoiding transformation of Article 34 into a general deregulatory charter.

For UK lawyers, the history has an additional layer. Before Brexit, Articles 30 and 34 had domestic legal effect through the European Communities Act 1972 and could be invoked before UK courts. After withdrawal, their domestic status depends on the European Union (Withdrawal) Act 2018, later amendments, and the distinction between retained, assimilated and excluded EU law. A Durham answer should not treat the topic as dead European history. It remains part of the constitutional grammar through which supremacy, direct effect, remedies and market integration are understood.

The first principle is the distinction between fiscal and non-fiscal barriers. Article 30 TFEU concerns customs duties and charges having equivalent effect. It is strict. A charge imposed unilaterally because goods cross a frontier is normally unlawful even if it is small, non-protectionist, or imposed on domestic and imported goods in a formally even-handed way at different stages. Internal taxation is instead addressed by Article 110 TFEU, which concerns discriminatory or protective internal taxes. Do not confuse the two. The classification matters because Article 30 admits no ordinary Article 36 justification, whereas Article 110 asks whether taxation discriminates against imports or protects domestic products.

The second principle is the meaning of quantitative restrictions and measures having equivalent effect. A quantitative restriction is a quota or ban limiting the quantity of goods imported or exported. It is usually obvious. The real work is done by measures having equivalent effect. Dassonville defines these broadly: trading rules capable of hindering intra-Union trade directly or indirectly, actually or potentially. This captures more than discrimination. It covers national rules which make market access more difficult, especially where imported goods must satisfy both the law of the exporting state and the law of the importing state.

The third principle is mutual recognition. Cassis holds that, in the absence of harmonised EU rules, a product lawfully marketed in one Member State should generally be admitted in another. The importing state cannot simply insist that the product be remade according to its own technical preferences. Mutual recognition is not absolute. It operates against a background of legitimate regulatory diversity. But it shifts the burden of argument: the Member State must explain why its rule is necessary and proportionate.

The landmark cases should be learned as a doctrinal sequence, not as isolated authorities. Dassonville is the starting point. Belgian law made it difficult to import Scotch whisky from France without a certificate of origin which was easier to obtain by direct importers. The Court’s definition of measures having equivalent effect was deliberately wide. It captured potential as well as actual hindrance and indirect as well as direct barriers. In exam terms, Dassonville supplies the threshold for Article 34; subsequent cases manage the consequences of that breadth.

Cassis de Dijon is the conceptual centre. Germany’s minimum alcohol rule prevented sale of a French fruit liqueur lawfully marketed in France. The Court held that, absent harmonisation, mutual recognition should prevail unless the importing state could justify the restriction. Cassis also introduced mandatory requirements. Its importance lies in the combination of market-opening and regulatory tolerance. It is not a simple anti-regulation case. Rather, it asks the state to justify regulatory duplication by reference to a legitimate non-economic interest and proportionality.

Commission v Ireland, the Buy Irish case, shows that Article 34 can apply to state-sponsored promotional activity, not merely binding legislation. A campaign encouraging consumers to buy Irish goods was attributable to the state and undermined the free movement of goods. This is useful for problem questions involving soft law, public funding, official endorsements, or semi-public agencies. The legal form of the measure is less important than its state attribution and practical effect on intra-Union trade.

Keck is the necessary correction to over-expansion. French rules prohibited resale at a loss. Traders argued that this restricted imports because it limited commercial strategies. The Court held that certain selling arrangements fall outside Article 34 if they apply to all traders and affect domestic and imported goods equally in law and fact. The point of Keck was to prevent Article 34 being invoked against every national rule reducing sales volume. Yet Keck is not a general safe harbour. Advertising restrictions, online sales rules and market-entry constraints may in fact burden imports more severely.

Familiapress illustrates the fragility of the selling arrangement category. Austria prohibited periodicals containing prize competitions. Although framed as a selling rule, the ban affected the content of imported magazines and reduced their attractiveness. The Court treated it as within Article 34 but accepted that maintaining press diversity could be a legitimate aim, subject to proportionality. The case is valuable because it shows both the breadth of Article 34 and the seriousness with which the Court can treat non-economic constitutional interests.

Commission v Italy (Trailers) is the modern pivot toward market access. Italy prohibited motorcycles from towing trailers. The rule did not require alteration of trailers as such, but it substantially restricted their use and therefore demand. The Court held that measures hindering access of products from other Member States to a national market fall within Article 34. The case matters because it addresses use restrictions and confirms that Keck does not exhaust the field.

Mickelsson and Roos applies the same idea to personal watercraft. Swedish rules limited where such craft could be used. If national rules have the effect of preventing users from using imported products for their intended purpose, or greatly restricting such use, they may hinder market access. Justification may nonetheless succeed where environmental protection or safety is pursued proportionately.

Commission v France, often called Spanish Strawberries, adds a public-order dimension. French authorities failed to prevent serious disruption by farmers against imported agricultural products. The Court held that Member States must take necessary and appropriate measures to ensure free movement. The case is a reminder that Article 34 may impose positive obligations on the state. It also links free movement to the constitutional idea of effectiveness: Treaty rights would be hollow if states could tolerate private violence against imports.

See practice questions section below.

See further reading section below.