What is the Free Movement of Goods?
Free movement of goods and services in the European Economic Area (EEA) is fundamental in maintaining a competitive and open market. Article 28 (1) of the Treaty of the Functioning of the European Union 2009 (TFEU) binds all member states to maintain and facilitate the free movement of goods, it states:
“The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between the Members States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.”
The idea behind having a single standardized internal market is to enable the free movements of goods, services, capital and people to facilitate competition.
The free movement of goods is governed by Articles within the TFEU. Articles 28 and 30 eliminate border charges and fiscal barriers whilst Articles 34 and 35 eliminate quantitative restrictions and measures having equivalent effect on imports and exports (see European Court of Justice cases Geddo v Entre Nazionale Risi (CASE 2/73) and Procureur du Roi v Dassonville (1974) ECR 837 for definitions of these terms). An example of a measure having equivalent effect to a quantitative restriction thus breaching Article 34 came to fruition in the case of Commission v Ireland (Case 249/81) where it was held that the Irish Government’s campaign ‘buy Irish’ promoting Irish domestic produce in the EEA constituted discriminations and subsequently breached Article 34 TFEU.
Article 34 states: “quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states”. These restrictions are mirrored by Article 35 but concern exports.
Article 36 TFEU permits a member state to derogate from these stringent requirements. It states:
“the provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on the ground of: public morality, public policy or public security; the protection of health and life of humans, animals and plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property…”
This Article provides 6 grounds where a distinct or indistinct national measure might be permissible. Article 36 is only justifiable as an exception where a member state is attempting to protect something using a national measure where a Union-wide provision does not exist. An example where one of these justifications may be invoked would include for the protection of intellectual property rights such as trade marks and copyright. This protection is afforded under the ground for the protection of industrial and commercial property.
Rachel Pellatt – Southampton Solent University Law Student who works one day a week at Lawdit