Free movement of goods: Recent developments in the case law

Abstract

This article critically reviews the case law of the European Court of Justice from 2002 to 2006. It starts by examining the jurisprudence on restrictions internal to a Member State, i.e. those imposed on transactions which do not involve traders or goods in or from other Member States. The concept of a customs union is also looked at here. The article then reflects on whether the provisions of Article 28 et seq. apply to the legal relations of individuals and companies inter se. It explores the relationship between the legal regime on free movement of goods on the one hand and those relating to persons, services, and capital on the other. There follows a discussion of the continuing development in the Court’s case law which started with Keck, drawing also on the Opinions of several Advocates General up to the most recent cases Commission v. Italy (Moped trailers) and Mickelsson. Moving from imports to exports, the authors analyse the judgments on Article 29 EC and call for clarifications in the Court’s approach. Following this, the article contemplates the cases on justifications for restrictions on the free movement of goods, encompassing the concept of “mandatory requirements”, the principle of proportionality, public health, public policy and fundamental rights as well as intellectual property. The authors conclude by commending the broad stability in the Court’s case law on these aspects of the common market, while highlighting their concerns about some specific developments.