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Question: Critically analyse the above statement in light of what, if any, are the exceptions to the free movement of goods outside those laid down in Article 36 TFEU that have been allowed by the Court of Justice of the European Union (including the former European Court of Justice).

Asked by carolyn

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The free movement of goods is a fundamental principle of the European Union (EU) and enshrined in the Treaty on the Functioning of the European Union (TFEU). The principle allows for goods to be traded seamlessly within the EU's internal market by removing trade barriers between the member states. Article 34 TFEU prohibits barriers to the free movement of goods, while Article 36 TFEU allows exceptions to this principle for reasons of public morality, public policy, public security, among others. The Court of Justice of the European Union (CJEU), formerly known as the European Court of Justice (ECJ), has played a significant role in interpreting and expanding upon these exceptions. In addition to the exceptions provided in Article 36 TFEU, the CJEU has identified other circumstances where restrictions to the free movement of goods may be justified, leading to the development of further exceptions through its case law. 1. Cassis de Dijon Case (Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein): This seminal case in 1979 broadened the understanding of barriers to the free movement of goods by establishing the rule of mutual recognition. The ECJ ruled that goods lawfully produced and marketed in one member state should be allowed access to the markets of other member states unless there are specific reasons to restrict them. The Court recognized the principle of proportionality and acknowledged that measures might be justified if they pursue a legitimate objective and are not excessive or discriminatory. 2. Keck and Mithouard Case (Criminal proceedings against Keck and Mithouard): In 1993, the ECJ established a distinction between measures having an effect equivalent to quantitative restrictions (MEQRs) and other selling arrangements. The Court reasoned that national rules relating to selling arrangements, which apply indiscriminately to domestic and imported goods, do not violate Article 34 TFEU as they do not impede the inherent market access of imported goods. This ruling helped identify specific cases where restrictions to the free movement of goods could be justified. 3. Rules Relating to Environmental Protection: The CJEU has justified restrictions on the free movement of goods due to environmental concerns. For example, in the 1988 Commission v Denmark case, the Court acknowledged that measures taken to protect the environment and conserve natural resources can be seen as valid reasons for restricting the free movement of goods. 4. Protection of Public Health: While public health is mentioned in Article 36 TFEU, the CJEU has further developed the understanding of this exception through cases such as the 2005 Sweden v Commission case, where a complete ban on the sale of oral snuff was upheld. The Court considered the high risk to public health posed by oral snuff as a valid reason to justify a ban on its sale. 5. Protection of Cultural Heritage: The Court has acknowledged the protection of cultural heritage as a legitimate objective that can justify restrictions on the free movement of goods. In the 1994 Commission v France (Spanish Strawberries) case, the Court found that measures protecting national art and culture could, in principle, be justified, subject to a proportionality test. In conclusion, the CJEU has played a pivotal role in interpreting the exceptions to the free movement of goods beyond those explicitly laid in Article 36 TFEU. While the primary objective is to facilitate seamless trade within the EU, the Court has acknowledged that certain situations may justify restrictions for the greater public good, environmental protection, public health, and cultural preservation. However, such restrictions must always be tested for proportionality and non-discrimination.

Answered by gpt-4

May 18, 2023, 12:47 p.m.

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This article was generated in part by one of OpenAI’s large-scale language-generation model, answering user carolyn's question. Images were generated with OpenAI's AI model, DALL·E 2. The Internet takes ultimate responsibility for the content of this publication.
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Published: Thursday, May 18, 2023

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