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Free Movements of Goods

Published online by Cambridge University Press:  17 January 2008

Joe McMahon  and
Stephen Weatherill
Stephen Weatherill
Affiliation:
Jacques Delors Professor of European Law, Somerville College, Oxford
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Extract

Since the expiry of the deadline for the completion of the internal market at the end of 1992, the Commission has shifted its focus away from piloting an intense rule-making burst through the Community legislative system. As part of its quest to establish reliable methods for managing the internal market, the Commission is now overtly concerned to improve the quality of those adopted laws, for example by securing simplification and consolidation, and it is intent on investigating more rigorously how a closer match may be made between the relevant laws on paper and their practical application on the ground.1 In short, the Commission is focusing its energies on ensuring that the legal framework which has been adopted is treated by commercial operators and consumers in the market as a viable and trustworthy basis for an integrated market. Accordingly much of the Commission's work since the last survey of the law relating to the free movement of goods has been at first sight relatively unglamorous. It largely concerns soft law initiatives and attempts to improve administrative co-ordination designed to underpin the practice of market management, both vertically (Commission/Member State) and horizontally (Member State/Member State). This forms the core of the strategy for the internal market covering the next five years, published on 24 November 1999.2 Nonetheless, even though these initiatives might not immediately strike the lawyer accustomed to a fountain of legislative activity as worthy of close inspection, it is clearly the case that the Commission regards its medium-term mission to stabilise the management of the internal market as best pursued by a gradual approach designed to improve practical compliance.

Type
Current Developments: European Community Law
Information
International & Comparative Law Quarterly , Volume 50 , Issue 1 , January 2001 , pp. 158 - 167
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. See e.g. on “Better lawmaking” COM (97) 626, COM (98) 715, COM (99) 562; and on the simplification programme, COM (99) 88. For survey of earlier initiatives see (1999) 48 I.C.L.Q. 217, 219CrossRefGoogle Scholar, (1997) 46 I.C.L.Q. 704, 710CrossRefGoogle Scholar; and Weatherill, , “New Strategies for Managing the EC's Internal Market” (2000) Current Legal Problems (forthcoming).CrossRefGoogle Scholar

2. COM (99) 642.

3. Case 120/78 Cassis de Dijon [1979] E.C.R. 649.

4. Case 145/88 Torfaen BC v. B & Q plc [1989] E.C.R. 765, para. 6 of the judgment. The “follow-up” is Case C–169/91 Stoke on Trent and Norwich City Councils v. B & Q plc [1992] E.C.R. 1–6635.

5. Cases C–267 and C–268/91 Keck and Mithouard [1993] E.C.R. 1–6097.

6. Ibid., para. 16 of the judgment

7. For a recent discussion which instructively critiques some of that which has gone before, see Oliver, , “Some Further Reflections on the Scope of Articles 28–30 (ex 30–36) EC” (1999) 36 C.M.L.Rev. 783.Google Scholar

8. See e.g. Case C–315/92 Clinique [1994] E.C.R. 1–317 and Case C–470/93 Verein gegen Unwesen in Handel und Gewerbe Köln eV v. Mars GmbH [1995] E.C.R. 1–1923.

9. For an important reading of the free movement case law under a constitutional perspective, see Poiares, Maduro, We, the Court (1998).Google Scholar

10. See this survey, (1997) 46 I.C.L.Q. 704CrossRefGoogle Scholar, (1996) 45 I.C.L.Q. 213CrossRefGoogle Scholar, (1994) I.C.L.Q. 207.Google Scholar

11. Case C–254/98 [2000] E.C.R. 1–151.

12. Some of these issues also arise in connection with the development of the law of free movement of persons and services, although they neither are nor should be necessarily resolved in the same way as prevails in the area of goods. See e.g. Case C–190/98 Volker Graf v. Filzmoser Maschinenbau GmbH [2000] E.C.R. 1–513, and see O'Keeffe, and Bavasso, , Ch.34 in O'Keeffe, (ed), Judicial Review in European Union Law: Liber Amicorum Gordon Slynn (2000).Google Scholar

13. Case 227/82 Leendert van Bennekom [1983] E.C.R. 3883.

14. The quote is taken from a case concerning the free movement of services, Case C–3/95 Reisebüro Broede v. Gerd Sanker [1996] E.C.R. 1–6511; see in connection with goods Case 53/80 Eyssen [1981] E.C.R. 4091.

15. For recent surveys, see Weatherill, , “Recent case law concerning the free movement of goods: mapping the frontiers of market deregulation”(1999) 36 C.M.L.Rev. 51Google Scholar and Maduro, Poiares, “Striking the elusive balance between economic freedom and social rights in the EU”, Chap. 13 in Alston, (ed), The EU and Human Rights (1999).Google Scholar

16. Case C–220/98 [2000] E.C.R. 1–117.

17. Case C–210/96 Gut Springenheide [1998] E.C.R. 1–4657 is cited as the source of this test; a less elaborate version of it may be found in the still earlier ruling in Case C–470/93 Mars, supra n. 8. The test has also been deployed to determine whether a trademark is apt to mislead: e.g. Case C–342/97 Lloyd Schuhfabrik Meyer [1999] E.C.R. 1–3819.

18. In his Opinion Advocate General Fennelly makes more effort than the Court to explore what these may constitute.

19. Case C–465/98 judgment of 4 April 2000.

20. Case C–470/93, supra n.8.

21. Case C–366/98 judgment of 12 Sept. 2000.

22. (1998) O.J. L204/37, itself amended by Directive 98/48 (1998) O.J. L217/18. See Weatherill, , “Compulsory notification of draft technical regulations: the contribution of Directive 83/189 to the management of the internal market” (1996) 16 Y.E.L. 129Google Scholar, Jans, , “National Legislative Autonomy? The Procedural Constraints of European Law” L.I.E.I. [1998/1] 25Google Scholar and Weatherill, , “A Case Study in Judicial Activism in the 1990s: the Status before national courts of measures wrongfully un-notified to the Commission” Chap. 31 in O'Keeffe, (ed), supra n. 12.Google Scholar

23. Case C–194/94 [1996] E.C.R. 1–2201; see (1997) 46 I.C.L.Q. 704, 709CrossRefGoogle Scholar

24. Case C–226/97 [1998] E.C.R. 1–3711; see (1998) 48 I.C.L.Q. 217.Google Scholar

25. Case C–443/98 judgment of 26 Sept. 2000.

26. E.g. Case C–51/93 Meyhui NV v. Schott Zwiesel Glaswerke AG [1994] E.C.R. I–3879. See (1996) 45 I.C.L.Q. 213, 217CrossRefGoogle Scholar and Weatherill, and Beaumont, , EU Law, 3rd ed. (1999), pp.554–56.Google Scholar

27. Case C–376/98 judgment of 5 Oct. 2000.

28. Directive 98/43 (1998) O.J. L213/9.

29. E.g. Case C–155/91 Commission v. Council [1993] E.C.R. I–939; Case C–209/97 Commission v. Council [1999] E.C.R. I–8067. See Mischo, , “The Contribution of the Court of Justice to the protection of the ‘federal balance’ in the EC”, Chap. 5 in O'Keeffe, (ed), supra n.12Google Scholar

30. . E.g. Case C–84/94 United Kingdom v. Council [1996] E.C.R. I–5755.

31. E.g. Advocate General Fennelly took the view that subsidiarity had no role to play in the adoption of measures under Article 95 (ex 100a), for this falls within the exclusive competence of the Community. Having annulled the Directive, the Court had no need to address this point and it did not do so.

32. See collected essays in Slaughter, Sweet, Stone and Weiler, , The European Courts and National Courts (1998).Google Scholar