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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). Based on your analysis, in your opinion has the Court’s jurisprudence been consistent?
The statement in question seems to concern the free movement of goods, which is a fundamental principle enshrined in the Treaty on the Functioning of the European Union (TFEU). Article 34 TFEU prohibits quantitative restrictions on imports and measures having an equivalent effect, while Article 35 TFEU does likewise for exports. Article 36 TFEU provides justifications for restrictions on the free movement of goods, including public morality, public policy or public security, the protection of health and life of humans, animals or plants, and the protection of national treasures. The Court of Justice of the European Union (CJEU), including its predecessor, the European Court of Justice (ECJ), has allowed for certain exceptions beyond those specified in Article 36. Let's analyze some of those exceptions and determine whether the Court's jurisprudence has remained consistent. 1. The Cassis de Dijon principle: In the 1979 case Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, known as Cassis de Dijon, the ECJ held that, in the absence of harmonized EU legislation, each Member State may impose its national rules to protect legitimate interests, as long as they are non-discriminatory and proportionate. This principle, known as 'mandatory requirements' or the 'rule of reason,' allows for exceptions beyond Article 36 TFEU and has been key to developing the internal market. 2. Selling arrangements: In Keck and Mithouard (1993), the ECJ made a distinction between measures that affect the 'product itself' and those relating to 'certain selling arrangements.' The Court held that the latter do not infringe on the free movement of goods if they apply to all relevant traders operating within the national territory and affect domestic and imported products alike. This jurisprudence marks an important change in the Court's approach, limiting the broad application of Cassis de Dijon and enhancing legal certainty. 3. Recognition of other grounds for exception: In addition to mandatory requirements, the CJEU has recognized other grounds for exception outside Article 36 TFEU. In Schmidberger (2003), the Court upheld the right to freedom of expression and assembly as justification for a restriction on the free movement of goods stemming from a protest on a major transit route. Similarly, in Omega (2004), the Court acknowledged the protection of human dignity as a legitimate ground for restriction. Revisiting the question of consistency in the Court's jurisprudence, one might argue that there has generally been consistency in the CJEU's approach to allowing exceptions to the free movement of goods beyond Article 36 TFEU. However, it is essential to note that the Court has shown some flexibility in its approach. The establishment of the Cassis de Dijon principle broadened the scope for exceptions, while the Keck ruling later narrowed it by introducing the distinction between product requirements and selling arrangements. Overall, the CJEU's jurisprudence has evolved to balance the need for legal certainty and market integration with the recognition of Member States' right to protect legitimate interests and fundamental rights. It is perhaps this continuous evolution and adaptation to new legal and societal developments that constitute the key feature of the Court's approach to the free movement of goods.
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