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Part B The Court of Justice has been cognisant of legislative and administrative difficulties with the internal market, and has fashioned legal doctrine to alleviate these problems.' Critically assess the Court’s purposive interpretation of the Treaty provisions concerning the free movement of goods.


The Treaty on the Functioning of the European Union (TFEU) is the main treaty governing free movement of goods. It continues to be the fundamental safety net for issues concerning the internal market.[1] Over the years, the concept of internal market has faced many obstacles, mostly in the shape of administrative and legislative difficulties


Internal Market: Definition and Issues

Definition of internal market: Article 26(2) of Treaty on the Functioning of EU (TFEU) defines internal market as comprising “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.”[2] This means that the EU has created a single market that allows the free movement of goods, persons, capital and services. For this purpose, EU has regularised customs duties and charges, and quantitative restrictions and measures in trade between Member States.[3] At the same time, treaty provisions and national legislation are also harmonised so as to encourage member states to promote free movement within the internal market.[4] The legislative and administrative difficulties within the free market relate to the following areas:

  • non-uniform tax systems of member states deterring market integration
  • variation in e-commerce practices
  • consolidated financial source
  • weak capital relocation.

The Role of the Court of Justice

To tackle the problems and issues related to the internal market, the courts have generally interpreted principle of free movement of goods in the broadest possible sense.

TFEU empowers the Commission to pass minimum harmonisation legislation, under which member state can set standards more exacting than the Commission. This was reinforced in Pubblica Ministero v Ratti[7] where ECJ decided that member state can maintain more precise obligations than the EU. In Eunomia di Porro & Co v Italian Ministry of Education[8] the ECJ ruled that Article 28 when read with other articles provides direct effect. In Rene Lamcry SA v Direction Generale des Douanes[9] ECJ interpreted Article 28 to prohibit custom duties and charges from applying to a member state, but imposed the same on goods that enter or leave a particular region of that state. Through regulations related to price-fixing, member states may provide higher duties for importers to market their goods but the ECJ held in Openbaar Ministerie v. Van Tiggele[10] that rules that put at a disadvantage imported products vis a vis identical domestic products violates the Article 28. In Commission v Italy,[11] ECJ held that Article 34 prohibited national law mandating additional requirement to make registration of imported cars longer, more complicated and costly.

Article 34 deals with intra EU imports and Article 35 concerns exports between the EU Member States. Both the Articles aim to prohibit quantitative restrictions. The courts in their role to balance interest of market regulation and to invalidate national rules that hinder market regulation confined the application of Article 34 in Keck[12] judgment and The Commission v Italy (Trailers) case[13]. ECJ held that some selling arrangements were out of scope of the Article and were held non-discriminatory.

Article 36 lays down limitation on such restrictions. Certain justified restrictions such as in the interest of public morality, policy or security among other things are provided.[14] In Commission v France (Milk Substitutes case), the Commission held that French prohibition related to marketing and import into France of milk substitutes was very restrictive that it would destroy trade between member states and did not allow public interest justification.

In Procureur du Roi v Dassonville,[16] the Court held that all trading rules of the Members States obstructing intra EU trade must be regarded as measures at par with quantitative restrictions. In Rewe-Zentral Ag v Bundesmonopolverwaltung Fur Branntwein, known as the case of Cassis de Dijon,[17] the court held that products which are manufactured and marketed in member states must be allowed to be sold in other member states. In Commission v Italy (Taxation of rum)[18] ECJ laid down removal of all types of protection that result from discriminatory internal taxation against products from other member states.


  • Inanilir Oznur, Derogation from the Free Movement of Goods in the EU: Article 30 and Cassis Manadatoru Requirement Doctrines (Rev. 1: 106, Ankara B. 2008).
  • Paul Craig and Gráinne De Búrca, EU law: text, cases, and materials (Oxford: Oxford University Press 2011).
  • Laurence W. Gormley, EU law of free movement of goods and customs union (OUP Catalogue 2009).
  • Paul Craig and Gráinne De Búrca, EU law: text, cases, and materials (Oxford: Oxford University Press 2011).
  • European Economic and Social Committee, “Obstacles to the European
  • Single Market” (07/2012) accessed.
  • LW Gomley, Free movement of goods and EU legislation in the Court of Justice: The Judiciary, the Legislature and the EU Internal Market (Cambridge: Cambridge University Press 2012).
  • Official EN Journal of the European Union, “Consolidated Version Of The Treaty On The Functioning Of The European Union” (2012), accessed26/03/2017

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