Export Restrictions within the Structure of Free Movement of Goods: Reconsideration of an Old Paradigm

Abstract

Although the Groenveld formula, concretizing the notion of measures having equivalent effect to quantitative restrictions on exports, is very often perceived as encompassing only those measures that are directly discriminatory, the ECJ’s jurisprudence proves that the Court is ready to include within that formula also the indistinctly applicable rules constituting indirect discrimination (Gysbrechts). In the present article it is submitted that the concept of measures having equivalent effect to quantitative restrictions on exports should encompass also non-discriminatory measures which hinder the access of exported goods to markets in other Member States, i.e. which trigger some perceptible difficulties within the activity of exporters (additional expenses or additional administrative or financial burdens), interfering with their commercial freedom to an extent that is not merely uncertain or indirect. The inclusion of such measures within the scope of Article 35 TFEU would be justified especially in the light of recent developments of the Court’s case law concerning Article 34 TFEU. The inclusion of non-discriminatory measures within the scope of Article 35 TFEU would make the system of fundamental freedoms more transparent and coherent, thus eliminating the hardly understandable situation in which the given measure, while prohibited by Articles 34 or 49 TFEU, is nonetheless permitted under Article 35 TFEU. Moreover, it is submitted that this is the concept of market access that should become the central issue within the fundamental freedoms’ dogma, covering not only market entry as such, but also the continued presence on the market.