The Private Effect of the Free Movement of Goods: Examining Private-Law Bodies’ Activities under the Scope of Article 34 of the Treaty of the Functioning of the European Union

Abstract

This case concerned a dispute between private bodies Fra.bo SpA and the DVGW. The question was whether Article 34 TFEU must be interpreted as meaning that it applies to standardization and certification activities by a private-law body recognized by national law, where national legislation considers the products certified by that body to be compliant with national law, having the effect of restricting the marketing of products which are not certified by that body. The Court determined that, Article 34 TFEU had been infringed. It emphasized the presumption of legality with German national law and the fact that there exist no real alternatives to obtain the required certificate. This case note establishes that the Court did not grant horizontal effect to Article 34 TFEU, but that it merely extended the application of the Article. Further, it examines some issues and possibilities with regard to the application of the competition law doctrine.