THE COURT'S JURISPRUDENCE ON THE FREE MOVEMENT OF GOODS � THE MARKET ACCESS APPROACH

Abstract

The purpose of this paper is to analyse specific rules concerning free movement of goods, especially measures that may hinder market access. Articles 34 and 35 of the Treaty of the Functioning the European Union (hereinafter: TFEU) prohibit quantitative restrictions on imports and exports and all measures having equivalent effect as quantitative restrictions between all Member States. The European Court of Justice (hereinafter: ECJ) dealt with a number of cases concerning Articles 34 and 35 TFEU. Even after numerous cases, rules concerning time, place and manner of marketing products (the so-called market circumstances rules) remained problematic. The ECJ thought that it was time to reconsider the outer limits of the Articles 34 and 36 TFEU. It is a Keck ruling that divided regulations into two parts: selling arrangements and product-bound measures. According to Keck, non-discriminatory national measures restricting or prohibiting selling arrangements are permissible and fall outside the scope of the Article 34 TFEU. Keck was followed by many cases, which partly clarified the remaining ambiguities. There were borderline cases where it could be argued that the rule concerned a certain selling arrangement, but the ECJ held it was product requirement. Thus, in an attempt to resolve the problems surrounding the market circumstances rules, the ECJ created further difficulties. Particular attention is paid to the ECJ’s jurisprudence after the Trailers case, where the Court revisited the principles of the free movement of goods and attempted to provide a new concept of a definition of prohibition of free movement of goods. According to that definition any discriminatory measure, including product requirements, and any other measure that hinders market access are covered by that concept. It has been concluded that the ECJ attempted to provide a new category of measures that are neither a product requirement nor the selling arrangements. Those measures hinder access of products originating in other states to the market of a Member State.