This article aims to explore two judicial approaches put forth by the Court of Justice of the European Union regarding the free movement of goods in the internal market – one emphasising the effect national rules have on intra-community trade, and the other focusing on the discrimination by national rules between domestic and other Member States’ goods. By employing an analysis of the jurisprudence of the Court of Justice of the European Union, it will be elucidated that the Court missed several opportunities to articulate a consistent approach to define what constitutes a ‘measure having equivalent effect to [a] quantitative restriction’ for goods circulating in the internal market. It is suggested that rather than aligning with either an ‘effects-based’ or ‘discrimination-based’ approach, the Court should instead embrace a situational test based on the ‘mutual recognition’ principle: when national rules have an impact on a good’s saleability, they are to be subjected to the more onerous effects-based test. However, when the restrictions have no bearing on a product’s marketing or sale, they can only ever be legitimately questioned on grounds of discrimination. This would ensure the saleability of goods across the internal market, without attempting to equalise the outcome of trade at the national level.
Introduction
Establishing the internal market is integral to the European integration project. Preserving the free movement of goods, in particular, has been an unwavering commitment by both Member States (‘MSs’) and European Union (‘EU’) institutions. Given the lack of detailed provisions regarding the formation and preservation of an internal market in the Treaty on the Functioning of the European Union (‘the Treaty’), the Court of Justice of the European Union (‘the Court’) was tasked with harmonising 27 distinct national markets without a methodological blueprint and with limited positive integration from other EU bodies.1 Furthermore, the Court’s inability to create new rules limited it to striking down national measures that inhibit the seamless trade of goods between MSs.
This article will trace the Court’s development of the free movement of goods and examine the implications of its decisions on the structure of the internal market. The judicial development of the law on measures having equivalent effect to quantitative restrictions (‘MEQRs’) is particularly inconsistent, and illustrates the difficulty of striking a balance between over-integrating the internal market on the one hand, and leaving it fragmented with varying ‘national standards adopted by democratically elected national governments’ on the other.2 It will be argued that the case law reveals two seemingly competing judicial visions of what the internal market should look like – one prioritising national sovereignty and the other insisting on absolute integration. However, it is suggested that these two visions can be complementary, rather than mutually exclusive: the Court has simply demonstrated a repeated lack of imagination in reconciling these two antipodal interpretations, each of which has a place in the EU’s internal market. This article will conclude by proposing an approach to MEQRs which could foster integration while reasonably preserving national autonomy. It will call for a return to the principle of mutual recognition which allows the saleability of goods across MSs, provided that they adhere to the national laws of the MS from which the goods originate.
The Court’s Vicious Cycle – From one Extreme to Another
The Treaty provides skeletal provisions for the free movement of goods within Articles 34 to 36, prohibiting ‘quantitative restrictions’ and ‘measures having equivalent effect [to quantitative restrictions]’ on both imports and exports between MSs. The vagueness of those terms provided the Court with the discretion to determine their scope of application, notwithstanding the constraints the Court generally faces. One such constraint is that the Court considers the political preferences of EU institutions and its actors because the Court’s own legitimacy is ‘closely linked with [MSs’] willingness to comply with [the Court’s] rulings’.3 The court’s influence is contingent and conditional upon acting to promote the objectives of EU institutions in order to maintain its relevance.4 In the context of the free movement of goods, the objective is to develop an internal market akin to a domestic one, free from any obstacles to trading.5 Reverting back to the three relevant Treaty provisions, this article will focus on Article 34, the provision for imports, due to the ample case law and the considerable academic discourse elaborating on the principles that are to be discussed. These underlying principles of market integration are especially contested when met with protectionist tendencies that arise in MSs when domestic output is threatened. For example, MSs are more willing to impose barriers to trade on imports if those imports threaten domestic production and jobs. This is to be contrasted with the willingness of MSs to encourage exports, thus creating fewer barriers to trade on them.6 The following paragraphs will respectively set out the first judicial approach favouring absolute integration, and the second approach prioritising national sovereignty.
In Dassonville, the Court adopted a broad approach to what constitutes MEQRs (meaning more national rules would be caught by the Treaty) by prohibiting ‘all trading rules enacted by [MSs] which are capable of hindering, directly or indirectly, actually or potentially, intra-[Union] trade’ (emphasis added).7 This case concerned a Belgian rule that required a certificate of authenticity to accompany the imported goods into its territory.8 Dassonville wanted to import an authentic good into Belgium. He found it difficult to obtain a certificate of authenticity because those goods had been put into free circulation in a MS that was not the country of origin.9 The Court ruled that this Belgian rule made it ‘less easy’ for Dassonville to obtain a certificate because the goods were first traded through another MS, which disincentivised him, and consequently other importers, from trading goods in Belgium.10 The Court focused on the effect of the rule, not its actual text, on the internal market and whether it hinders or places obstacles to trade between MSs. The striking breadth of this approach catches measures which both actually and potentially restrict trade. This places the burden of proof on MSs to justify their enacted rules to EU institutions for approval, thereby limiting their respective regulatory autonomies. With the subsequent case of Cassis, the broad approach was cemented through the introduction of the ‘effects-based’ test and the ‘mutual recognition’ principle.11 In the case of Cassis, a company tried to import a liqueur called ‘Cassis de Dijon’ into Germany from France,12 but Germany placed restrictions on how much alcohol liqueur needed to contain to be marketed as liqueur in Germany. ‘Liqueur’ was required to have an alcohol content of at least 25% in Germany, while it had to be 15-20% in France.13 The difference in alcohol content meant that the Cassis de Dijon manufacturers would have to alter their manufacturing process, quality control, ingredients, and machinery for the liqueur to be imported and sold in Germany. The Court ruled that the effect of the 25% rule was the exclusion of other MS products from the German market, creating an obstacle to trade within the EU. The Court again focussed on the effect that those national rules have on discouraging Union trade, even if they are non-discriminatory.14 It also introduced the concept of mutual recognition, which meant that MSs must recognise each other’s standards as equivalent to their own: lawfully manufactured and marketed French products must be capable of being sold in Germany without further restrictions, and vice versa. Mutual recognition is seen here as a building block of the free movement of goods,15 since there is ‘no valid reason why [goods lawfully manufactured and marketed in one MS] should not be introduced into any other [MS]’.16 It not only intercepts national rules but also allows products to be sold in another MS solely based on its lawful manufacturing or marketing.
The broad, effects-based test is juxtaposed with following a narrow, discrimination-based test. Considering the lack of EU-wide measures to replace trading rules covered by the broad approach, which casts a wide net on which national rules are to be prohibited, the absence of uniform product standards and the potential deregulation of the internal market prompted the Court to retreat on their effects-based approach through Keck.17 Here, the Court drew a distinction between national rules relating to ‘product requirements’18 and ‘selling arrangements’, with the former always breaching Article 34 unless justified, and the latter being outside its scope, though still subject to a non-discrimination test.19 As long as national rules on selling arrangements are not discriminatory in law and in fact, they are permissible.20
This arbitrary segregation of national rules was emphasised in Trailers.21 Here, a national rule fell outside the two Keck categories. However, because the rule in Trailers was a measure that hindered the ‘access of products’ originating from another MS, it breached the Treaty. In this case, a non-discriminatory Italian rule reduced the number of trailers being bought in the Italian domestic market, thus affecting ‘market access’.22 The Italian rule banned trailers from being towed by anything other than a ‘motor vehicle’. Therefore, trailers could not be towed by mopeds – the preferred choice of transport in Italy. The issue at hand was about how the trailers were ‘used’, i.e., whether they can be attached to a moped or other vehicle, which does not fit either Keck category. This rule on use was not discriminatory either, applying to Italian trailers as much as imported ones. The Court once again focused on the effect of this rule, which was the significant reduction in demand for trailers in Italy, and the influence on consumer behaviour. This judicial manoeuvre seems to have added another category of rules hindering access to the market.23
The Court also referred to the ‘market access’ test in the subsequent cases of ANETT24 and Scotch Whisky,25 without explicitly overruling Keck. The case of Scotch Whisky concerned the minimum price per unit for alcoholic drinks proposed by the Scottish Parliament.26 The Court held that the Scottish legislation ‘prevented the lower cost price of imported products being reflected in the selling price to the consumer’.27 Thus, it was ‘capable of hindering the access to the United Kingdom market of alcoholic drinks that are lawfully marketed in MSs other than the [UK]’.28 This ‘catch-all’ market access term lacked normative justification, once again widening both the Court’s approach and the boundaries of the Treaty.
It seems as if the Court has come full circle in intending to broadly integrate the internal market, but it is unclear whether market access is the definitive test today.29 It appears that the Court is preserving various interpretive tools in its arsenal to respond to different criticisms and to ever-changing market practices.30 Keck persists when critics respond to overwhelmingly broad approaches, while the market access test, echoing the original effects-based approach, exists to address novel national legislation. Snell contends that the Court intuitively focuses on the significance of the rule’s impact throughout its various tests.31 Therefore, one must revert to the Treaty provisions and ascertain the purpose of Article 34 to discern validity of these tests. AG Tesauro provides two options for the purpose of Article 34: to either liberalise inter-Community trade or to encourage the unhindered pursuit of commerce in each MS.32 Taking that into consideration, the following sections delineate the problems associated with these various tests and propose another outlook respectively.
What Keck Got Right – Differentiating Between National Rules
The segregation of national rules created an arbitrary distinction, since non-discriminatory ‘selling arrangement’ rules can still inhibit intra-Union trade, and because many rules fall in neither of the two categories of ‘selling arrangements’ or ‘product requirements’. For example, the French legislation in Keck still had an ‘effect’ on trade, but since it was interpreted as a selling arrangement and was non-discriminatory, it was admissible. However, selling arrangements can be more consequential than product requirements. For example, selling arrangements obliging porcelain traders to sell their goods only on five days per week impact their revenue more than product requirements demanding the placement of a ‘fragile’ sticker on each box.33 Although the Court’s intention in Keck was to ensure that the Treaty did not provide traders with a legal tool to challenge any commercially inconvenient regulation, it does not address the ‘effect’ that still subsists.
Despite being heavily contested,34 the Keck judgement gouged a hole in the definition of MEQRs and the notion of integration itself. It subtly introduced a different outlook to internal market integration through its emphasis on non-discrimination – prescribing that national rules fall equally on all traders. Whilst this non-discrimination approach is not applicable to product requirements, the overarching principle of discrimination itself warrants a discussion due to its implications on MS legislation and on a trader’s participation in another MS market.
If the same national rules apply to all goods in a domestic market, regardless of their origin, it can be argued that there are no trade barriers as such. Any trader trying to break into that market would face the same obstacles. This approach would create a minimum standard that applies to every trader, and consequently, those obstacles would be the general obstacles of that domestic market. Here, national rules would include both product requirements and selling arrangements, since the segregation between the two has been blurred by subsequent case law and national rules not conforming to either category. Although this transcends the limits placed by Keck, it is important to consider the underpinnings of discrimination as a principle.
Therefore, the Court adopts two different interpretations of the ‘free movement of goods’. By subscribing to the overarching principle of discrimination, the first interpretation of the free movement of goods calls for a minimum standard in a MS’s market which applies to all domestic and imported products. Both foreign and domestic traders would be subject to the same blanket regulation when entering that domestic market. This would preserve national autonomy, allowing domestically elected legislators to regulate and ensure approved product standards according to consumer needs in that country. This interpretation follows AG Tesauro’s first purpose of Article 34: to liberalise intra-Community trade and ‘mediate the relationship between [market-liberalisation] on the one hand and national sovereignty on the other […]’.35
The second interpretation does not focus on whether imports are disadvantaged when compared to domestic products. Rather, it concentrates on the actual cross-border movement of goods and the ‘extra steps’ a trader must take to break into a domestic market (seen in Dassonville, Cassis, and Scotch Whisky). The latter definition allows for a more commercial test, since it envisages potential troubles – such as altering manufacturing or administrative processes – in a ‘Union’ market where trade should flow seamlessly. Again, this interpretation would follow AG Tesauro’s second purpose of Article 34: the unhindered pursuit of commerce in the individual MSs. Snell furthers this comparison of the two interpretations by claiming that this distinction collapses into anti-protectionism versus economic freedom.36
Both views are extreme, and ensuring either minimum standard floors or cross-border movement is unsatisfactory. By insisting on non-discrimination alone, the preservation of a minimum standard in each MS’s market allows for outright trade barriers and thus ‘under-integrates’ the internal market. Despite addressing deregulatory concerns,37 this is a weak solution that gives rise to a fragmented market. Conversely, taking the effects-based view on obstacles affecting cross-border movement of goods will ‘over-integrate’ by striking down too many national rules, thus deregulating the internal market.
Additionally, given the different economic and consumer realities of MSs, the Court would be discriminating against certain MSs by granting some greater regulatory autonomy because of how the domestic rules in question affect their markets. In Trailers, there was nothing stopping the sales of trailers themselves. The altered consumer behaviour had nothing to do with the product or its marketing, unlike the rules in Cassis which had a direct bearing on the ability to sell the good itself in another market. Traders were freely able to import and sell trailers in Italy, just as they could across the EU – no rule prevented this. The Court instead went further, focusing on the limitation on a trailer’s use as an indirect obstacle to trade. The national rule was struck down because it had ‘considerable influence on the behaviour of consumers’.38 Perhaps, if such a rule existed in, say, Germany, this effect would not have been so pronounced given the lesser prevalence of mopeds there. It is argued, then, that the national rule may have persisted in another MS. The reality in Italy was that consumers preferred mopeds, leading to a disparate effect that prevented the Italian government from enacting a national rule.
It is evident that this approach allows some national rules to survive in one MS when they would not survive in another, solely due to the weaker impact of those national rules on their respective market. This disparate impact of national rules on a MS’s market gives rise to a prejudicial approach by the Court since it would discriminate based on that disparate effect itself. Furthermore, when evaluating the effect of national rules on domestic markets to decide whether the Treaty was breached, the Court also runs the risk of prescribing consumer behaviour across the internal market and granting some MSs more leeway.39 The aggregate consequences of this view would breed resentment and would call for a return of national sovereignty, which is detrimental to EU integration efforts.
The Court missed several opportunities to reconcile the two interpretations above, preferring to patch up emerging issues based on current EU sentiment and political factors.40 Bradford illustrates the continuous relevance of EU sentiment regarding integration using its strong democratic backing and the global affirmation on the EU’s valid model of economic and political integration.41 As previously mentioned, the Court is responsive to politics and depends on a large set of institutions, actors, and mechanisms outside the courtroom.42 Reverting to the reconciliation of aforementioned judicial approaches, one cannot solely apply an effects-based or discrimination-based analysis on all national rules because the rules themselves are different. It follows that rules must be distinguished according to a standard, which was correctly deduced in Keck – in principle but not in execution.
Back to Basics – Reverting to Mutual Recognition
National rules vary in their proximity to the goods in question, necessitating different judicial treatment. There are national rules which directly impinge a trader’s ability to enter and trade in a domestic market. For example, the national rules in Dassonville and in Cassis directly affected the saleability of their respective goods. It is proposed that this is due to the proximate nature of the rule to the goods in question. Contrastingly, national rules which are ancillary to the saleability of goods, such as the national rule in Trailers of ‘rules on use’, are not proximate enough to the goods in question so as to render an inhibition on trade as such. As previously stated, trailers were nonetheless saleable in Italy despite the national rule. It is proposed that the principle of mutual recognition, which calls for the reciprocal commitment of allowing all lawful products to be traded across the internal market, can set the standard according to which national rules are classified as proximate to the good or not. If one is able to legally manufacture and market their product domestically, they should be able to use those same methods in other MSs. Any national rules that are divorced from the manufacturing or marketing processes of the goods, as per the mutual recognition principle, are deemed to be insufficiently proximate to the goods.
This variation in proximity to the goods necessitates two different judicial treatments to the national rule – both of which were previously outlined by the Court. Any impingements on this saleability must be considered as MEQRs to which an effects-based test applies, as such national rules affect their traders’ ability to access the respective national market. Contrastingly, rules divorced from the manufacturing or marketing methods of goods are simply subject to a discrimination-based test. If incidents, such as diminishing sales or demand, occur by virtue of an indistinctly applied national rule not affecting traders’ manufacturing or marketing processes, then that is simply a feature of the particular domestic market. It would be inappropriate for the Court to attempt to equalise consumer demand for a good when the good in question is in no way prevented from physically accessing the market.
For example, the effect in Trailers did not come from a lack of mutual recognition. Non-discriminatory rules, like the one banning trailers from being towed by anything other than a ‘motor vehicle’, are divorced from the saleability of the goods entirely, such that their effect should not breach the Treaty. Trailers, which were lawfully sold elsewhere, were still able to access the Italian market – there were no restrictions as such. The fact that demand dropped in Trailers had nothing to do with traders’ abilities to import and sell their goods in Italy.
It is important to note that adopting the author’s proposed standard to differentiate between national rules according to the mutual recognition principle is a choice. Any rule can have some effect on the internal market, but if certain national rules do not hinder traders’ abilities to manufacture or market their product as they wish, then they should be permitted. The Court must ascertain its internal market priorities: is it to lift commercial burdens and prescribe supply and demand, or simply to ensure fair market participation?
Employing this model of mutual recognition ensures the saleability of goods, but does not try to equalise the outcome of trade. It strikes a balance between allowing States to self-regulate while substantially allowing the free movement and marketing of goods. Although there is no harmonised product standard across the EU, the guaranteed saleability of all goods ensures fair competition. As new national rules emerge, differentiating them based on the definition of mutual recognition could be a helpful tool in deciding whether to adopt an effects-based test, or a discrimination-based one. It is suggested that adding this preliminary step to the process of deciding whether a national rule breaches the Treaty can impose some coherence. It can also sensibly categorise different types of national rules to eliminate trade barriers, while retaining other rules which do not affect a trader’s right to enter another market in the EU.
Criticism regarding this view of reviving the mutual recognition principle is levelled by Weatherill, who states that the principle of mutual recognition does not really exist and that the Court, in fact, prefers not to use the label of mutual recognition.43 He advances the more recent case of Noria44 where it is emphasised that:
Primary EU law does not dictate that if products are good enough for one [MS], then they are good enough for all [MSs]. Instead, it demands only that the more fastidious State shall demonstrate why they are not good enough for it and, as part of that process of justification, it must as a matter of EU law comply with procedural disciplines which the Court has attached to the free movement norms […].45
Indeed, the Commission itself recognises the limitations of mutual recognition.46 It initially names it as a cornerstone of the internal market, as the principle enables products to circulate freely on the basis of conformity with national laws in the MS where the product is first marketed. The Commission subsequently calls that very strength a weakness because when problems occur, there is little or no transparency. As a result, many companies would decide to abandon certain markets and different legal systems would be in competition with each another. Nevertheless, the Court requires a more commercially viable and proportionate approach to national rules regarding goods compared to the jigsaw of interpretations it set forth. Reverting back to the definition of mutual recognition, and concerning itself with the guarantee of goods saleability based on their lawful manufacturing and marketing, provides the Court with a blueprint where it can maintain the two approaches – effects-based and discrimination-based – and can gauge the effect, especially the type of effect, national rules have on the saleability of goods. The proximity of the rule to the goods in question dictates the test that is to be used. This would ensure the saleability of goods across the internal market, which is at the core of Article 34, without attempting to equalise the outcome of trade at a national level (as implied by Trailers).
Conclusion
To sustain a coherent approach to MEQRs, national rules must be differentiated according to their proximity to the goods in question. If the rule does not affect the manufacturing or marketing processes of a good, it must be allowed if it is indistinctly applicable. In this way, the Court can secure fair market participation across the EU without attempting to level trade and equalise consumer demand for a good when the good in question is not prevented from physically accessing the market. The access to the market should be of primary concern, and any effects that result from rules divorced from a good’s ability to physically access a national market are to be considered as features of that national market if those rules are indistinctly applied – echoing the discrimination-based test. On the other hand, any impingements on the saleability of goods, which include rules regarding manufacturing or marketing methods, call for the effects-based test.
[1] Consolidated Version of the Treaty on The Functioning of the European Union [2016] OJ C202/47.
[2] For a discussion on harmonisation versus standardisation, see Catherine Barnard, The Substantive Law of the EU: The Four Freedoms (6th edn, Oxford University Press 2019), ch 14.
[3] For a full discussion on the political constraints the Court faces and the adoption of judicial decisions into EU legislation, also known as legal integration, see Dorte Sindbjerg Martinsen, An Ever More Powerful Court?: The Political Constraints of Legal Integration in the European Union (Oxford University Press 2015), 34.
[4] ibid 39-41.
[5] See the European Commission’s guidance on the role of the free movement of goods in the internal market in Commission Notice Guide on Articles 34-36 of the Treaty on the Functioning of the European Union (TFEU) [2021] OJ C100/03.
[6] Barnard (n 2) 69.
[7] Case 8/74 Procureur du Roi v Benoît and Gustave Dassonville, EU:C:1974:82, para 5.
[8] ibid para 3.
[9] ibid para 4.
[10] ibid para 9.
[11] Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, EU:C:1979:42.
[12] ibid para 2.
[13] ibid para 3.
[14] ibid para 12.
[15] A 2007 memorandum from the EU Commission Spokesperson’s Service reiterates this by stating that MSs ‘cannot forbid the sale on their territories of products lawfully marketed in another [MS]’, see European Commission, ‘Package on Internal Market for goods’ MEMO (2007) 54 <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_07_54> accessed 19 December 2021.
[16] Cassis (n 11) para 14.
[17] Joined Cases C-267/91 and C-268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard, EU:C:1993:905. Keck was prosecuted in France for selling goods at a loss, which was illegal in France. He argued that he would be discouraged to trade if he is unable to offer his products, when they are new to the market, at a very low introductory price and consequently cannot break into the market effectively. Throughout its ruling, the Court was wary of this discouragement ‘effect’ resulting from the French rule.
[18] This includes requirements for, but not limited to, designation, form, size, weight, composition, presentation, labelling and packaging.
[19] The deregulatory concern in this case was that traders were employing Article 34 to challenge any rules that were commercially inconvenient.
[20] Keck (n 17) para 16: ‘By contrast, contrary to what has previously been decided, the application to products from other [MSs] of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between [MSs] within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other [MSs]’.
[21] Case C-110/05 Commission of the European Communities v Italian Republic, EU:C:2009:66.
[22] ibid paras 56-58, 66-67, 69.
[23] Eleanor Spaventa, ‘Leaving Keck behind? The free movement of goods after the rulings in Commission v Italy and Mickelsson and Ross’ (2009) 34(6) European Law Review 914-916.
[24] Case C-456/10 Asociación Nacional de Expendedores de Tabaco y Timbre (ANETT) v Administración del Estado, EU:C:2012:241.
[25] Case C-333/14 Scotch Whisky Association and Others v Lord Advocate and Advocate General for Scotland, EU:C:2015:845.
[26] ibid paras 5-7.
[27] ibid para 21.
[28] ibid para 32.
[29] See Spaventa (n 23) for a discussion on the boundaries of Article 34 and an interpretation on where the Court currently stands.
[30] See Martinsen (n 3) for how the Court positions itself as a ‘responding’ body.
[31] Jukka Snell, ‘The Notion of Market Access: A Concept or a Slogan?’ (2010) 47(2) Common Market Law Review 437, 467.
[32] Case C–292/92 Ruth Hünermund and others v Landesapothekerkammer Baden-Württemberg, EU:C:1993:932, paras 1 and 11.
[33] Spaventa (n 23). The example provided in this essay is a hypothetical scenario inspired by a table created by Spaventa. The table laid out post-Keck case law on certain selling arrangements, showing the many trading rules that were not caught by Articles 34 and 35, and others that were caught by either market access hindrance or indirect discrimination. It seems that Court was labelling selling arrangements and their effects using unprincipled categories and definitions.
[34] See the most authoritative criticism by AG Jacobs in Case C-412/93 Société d’Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA, EU:C:1995:26, para 38. For academic criticisms, see Catherine Barnard, ‘What in the Keck are we doing? Balancing the needs of the single market with state regulatory autonomy’ (2012) European Journal of Consumer Law 201 and Peter Pecho, ‘Good-bye Keck? A comment on the remarkable judgment in Commission v. Italy Case C-110/05’ (2009) 36 LIEI 257.
[35] Barnard (n 2) 114.
[36] Snell (n 31) 438.
[37] For a discussion on deregulatory concerns, see Stephen Weatherill, ‘Pre-emption, Harmonisation and the Distribution of Competence to Regulate the Internal Market’ in Barnard and Scott (eds), The Law of the Single European Market, Unpacking the Premises (Hart Publishing 2002).
[38] Trailers (n 21) para 56.
[39] Although it could be argued that the Court attempts to integrate the market by merely taking into account existing consumer behaviour, it is suggested that inconsistencies can still arise because one MS would embody a national rule differently than another which implements that same national rule. This is exemplified by Trailers. The economic reality of one MS is its inherent feature which should not be manipulated, especially because the Treaty itself only calls for the ability to sell goods across the internal market.
[40] For mentions of political and social factors, see Barnard (n 2) 113-143.
[41] Anu Bradford, ‘The Brussels Effect’ (2009) 107(1) Northwestern University Law Review 1.
[42] Martinsen (n 3) 29.
[43] Stephen Weatherill, ‘The principle of mutual recognition: it doesn’t work because it doesn’t exist’ (2018) 43(2) EL Rev 224.
[44] C-672/15 Criminal Proceedings against Noria Distribution SARL, EU:C:2017:310.
[45] ibid para 225.
[46] Communication From the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, ‘Internal Market Strategy, Priorities 2003-2006’ COM (2003) 238 final, 6.
Cham Mikhaeil
LLB (City Law School) ’21, LLM (LSE) ’22