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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 free movement of goods is a fundamental principle of the European Union (EU) law, strongly entrenched in Articles 34-36 of the Treaty on the Functioning of the European Union (TFEU). The principle aims to establish a borderless market, ensuring the free movement of goods between member states. Article 36 TFEU permits the restrictions on the free movement of goods in the situations of public morality, public policy or security; the protection of health and life of humans, animals or plants; the protection of national treasures of artistic, historic or archaeological value; or the protection of industrial and commercial property. Over the years, the Court of Justice of the European Union (CJEU), including its predecessor, the European Court of Justice (ECJ), has delineated exceptions to the free movement of goods principle outside those laid down in Article 36 TFEU. Some of these exceptions are the Cassis de Dijon principle, mandatory requirements, selling arrangements, and the Keck distinction. 1. Cassis de Dijon principle (mutual recognition): In the landmark case of Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon, Case 120/78), the ECJ introduced the 'principle of mutual recognition,’ which allows for a product legally produced and marketed in one member state to be marketed in another member state, even if the latter has different requirements. 2. Mandatory requirements: In this exception, certain national rules that seek to protect public interest over economic interest can justify a restriction on the free movement of goods. These rules must be applied indiscriminately to both domestic and imported goods. Examples of such mandatory requirements include consumer protection, environmental protection, and public health. 3. Selling arrangements: The CJEU, in the cases of Henn and Darby (C-34/79) and Cinéthèque (C-60/84), differentiated between the actual goods' content and how they were sold. Restrictions on sales arrangements that are non-discriminatory and proportionate could be justified. 4. Keck distinction: In the case of Keck and Mithouard (C-267/91), the court refined its approach to selling arrangements. It held that national measures affecting selling arrangements that applied to all traders and affected domestic and imported products alike would not infringe Article 34 TFEU, provided that they did not restrict market access more for imported goods. The CJEU's jurisprudence on the free movement of goods has evolved over the years to accommodate the ever-changing commercial landscape and the need for proportionality and non-discrimination. However, some inconsistencies have emerged, particularly in the Court's stance on selling arrangements and the Keck distinction. Critics argue that the Court has sometimes seemed to emphasize market integration over other considerations, like public interest or national non-economic concerns. In conclusion, while the CJEU has shown flexibility and adaptation through the development of exceptions beyond Article 36 TFEU, its jurisprudence on free movement of goods has not been entirely consistent. The Court has wavered on the boundary between permissible national distinctions and unlawful restrictions on the movement of goods. Nevertheless, the CJEU's role remains central for the maintenance and interpretation of the free movement of goods principle in the EU.
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