Free Movement of Goods

EU LAW

Prof: MOHAMMAD MEHMOOD AHMAD

Compiled By: Muhammad Raees Malik
University of London

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Lect#13,14,15,16,17 FREE MOVEMENT OF GOODS 20-01-2022

NOTES FOR EXAM:

 Three basic concepts of this chapter for exam.

 Essay or probe both are expected.
 Ambit three is important as must question is asked covering this ambit.
 Probe from non-monetary ambit. A must
 Spot monetary or non-monetary----------MCQR 4 things any one---------- elaborate in light of Art-
34 and 35----------then type of breach.

SKETCH:

1. 1st Ambit: monitory restrictions and charges equivalent effect. (Article 28 to 30 of TFEU).
2. 2nf ambit: internal taxation (article 110 of TFEU) 110(1) and 110(2).
3. 3rd ambit: non monitory restrictions or measures equivalent to quantitative restriction (shape,
size, composition, weight and labelling). (Article 34 and 35 of TFEU.
4. Exceptions to non-monitory restrictions (Article 36 and mandatory requirement exceptions.

------------------------------------------------------------------------------------------------------------------------------------------

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From NON-MEMBER STATE to MEMBER STATE = NO FMG

From MEMBER STATE to MEMBER STATE = FMG

Introduction

FMG literally means that any good or product within the EU should not be restricted by any custom duty
or other barrier. Article 26 of TFEU provides for four freedoms: common market, free movement of
capital, services and establishment, persons and free movement of goods. In order to achieve the aim of
common market and to consolidate the economy of the union. FMG has been referred as the cornerstone
of the internal market but balance must be achieved between EU rights and member states’ rights.

Domestic and foreign products in a member state must be placed on equal footing and FMG prevent any
attempt that gives priority to domestic over European product. FMG requires both negative prohibition
and positive obligation on member states. When goods move from one-member state to another there
will be no monetary or non-monetary restriction, the receiving state has to implement free movement of
goods. When a trade is co-operated between different cities of a member state, however, FMG is
inapplicable here as it is an internal situation. FMG is based on two rules; nondiscrimination and access to
market.

Italian Art Treasure: FMG applied to any product that form the basis commercial transaction and has a
monetary value.

Van Gend En Loos: The provision of FMG contains direct effect.

Internal situation: If a product is being imposed with restrictions and taxes by its own member state, then
it would be an internal situation. In order to enjoy FMG, a product has to move from one-member state
to another member state. In such situations domestic law should be invoked and not international laws.

Jersey Produce Marketing: The movement of a product between two regions of a same member state
would not invoke rules on FMG.

Common Custom Tariff Policy:

European Union: Any point of entry chosen by a non-member state, it would face the same tax or
customs to maintain a balance of trade between all member states, and not unfair or bias dealings should
be done. This is called Common Custom Tariff Policy. (Uniform taxation rate for outsiders.)

FMG ensures common custom tariff policy for the outsiders which provides that irrespective of entry place
the custom duty would be in uniformity and harmony. If a non-uniform taxation policy applied than
common market could be exploited since importers may enter the EU from the member state with lowest
taxation rate.

Diamanter Beiders V Indiamex: Prohibition on custom duties applies to goods imported directly from
third world countries. This means common custom tariff policy can be applied on such goods, but no other
charges can be added by a member state.

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1. 1st Ambit: Monetary Restriction / Charges Equivalent Effect (CEE)

Article 28 TFEU provides that a good which is coming from a non-EU state upon its entry in EU can be
charged in whatsoever manner since FMG would not hold application. However, once a good entered EU
then it would enter a zone of free circulation and could not be charged at the border of different member
states.

Commission v Italy (Statistical levy): Facts: Italy was imposing some charges on import and export of
goods, and Italian authorities maintained that they were doing it so as to maintain a statistical register, so
wanted to record exit and entry, and charged the fee at the border

Held: ECJ maintained that we will look at the effect of the charge and not its purpose, thereby, this charge
was held to be void and ECJ rejected Italy’s arguments since it was hindering movement of goods in Italy.
EU market is a sensitive market it promotes prevention is better than cure.

Bresciani: The Italian authority were allowed to impose a charge on imported raw cow hides for medical
examination since it was done for public health. The benefit of this test was for the public, but importers
and exporters were charged of it. The reasoning of public benefit was justified

Marimex: Inspection fee levied on imported products violated FMG provision even though some
inspection was levied on similar domestic products.

Article 30 TFEU provides that the provisions of article 28 will take direct effect and it supplements article
28 by stating that all custom duties and charges having equivalent in effect are prohibited unlawful and
declared void.

Three situations fall outside the scope of article 30 of TFEU:

i. Payment for a service

Whenever an importer is provided with a benefit which is optional, and importer attempted to avail it
then any payment for it falls outside the ambit of Article 30 TFEU. It involves special benefits individually
conferred upon importer and exporter.
Commission v Belgium: It was held cost charged for a service was based on actual cost of providing it and
cost should be proportionate to the benefit or service conferred. The service conferred should be specific
and not available for public at large.

Cadsky vs Instituto: Charges for services provided for public health reasons such as inspections are not
lawful since such services benefit the public at large and could not be regarded as an individual services
or benefit.

ii. Charges for inspection mandatory under EU law

If any EU measure calls for a charge on any particular good, then it would be valid in the eyes of law.
However, if a directive is silent as to who would pay the charge then the member state transfers the
burden on the importer or exporters.

Commission v Federal Republic of Germany: Fees charged on transportation of live animals from one
member state to another member state cover the cost of veterinary inspection carried out under the
directive and did not constitute a custom a duty.

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 Bauhuis v Netherlands: Fees of veterinary and public health inspection were demanded as part of general
system of EU law charges and not held to be a monetary restriction.

iii. Internal Taxation

Article 30 – Exception- Internal taxation (Article 110 TFEU)

Cooperativa Cofrutta: ECJ defined internal taxation as a tax that relates to the general system of internal
dues applied systematically. To the categories of products in accordance with an objective criteria and
without considering the origin of the products.

Lutticae Case: Article 110 has a direct effect that is invoked in the domestic courts of a member state.

Article 110 of TFEU:

(1) Similar goods be taxed similarly

(2) Competing goods so as to avoid protection effect

Once a European good enters the member state free of cost then article 30 will not apply upon its
movement internally, but Article 110 TFEU holds the application in this regard. Article 110 TFEU deals with
situation of internal taxation and it has a two-fold effect. AS per this provision member state should not
apply any internal taxation, direct or indirect, which will discriminate against the product of other member
state. Article 110 is not to prevent internal taxation but prohibits discriminatory taxation.

2. 2nd Ambit: Internal Taxation

Article 110(1): it prohibits any tax imposed on imported goods which is in excess of that imports directly
or indirectly on similar domestic goods. Since such taxes discriminate against imported goods (Equivalence
of taxes). Similar goods be taxed similarly.

Article 110(2) prohibits unequal taxation on similar goods and bars any tax imposed on imported goods
which is in excess of that imposed directly or indirectly on similar domestic products, the aim is not to
hinder taxes but unequal taxes on similar goods.

A similar good refers to a product with same ingredients, consumer needs and productive method.

Vine & Beer case: Facts: This issue was whether vine & beer were similar or competing goods. ECJ held
that raw material & production methods were different and end product too was different hence; they
were not similar but competing goods so they could be taxed differently.

Held: The test for determining whether a goods in question is similar or competing is to see whether a
good in question is similar or competing is to see whether a good fulfils the same consumer need? If they
fulfill the same consumer need but different raw material on production methods were applied, then
goods were competing.

Commission v France (tobacco): Facts: Taxes were different for light and dark tobacco. The issue was that
whether light and dark tobacco were similar or competing goods.

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Held: The light and dark tobacco were similar goods, because they were made from same raw material
possessed similar properties and characteristics and fulfilled the same consumer needs so both types of
tobacco were similar thereby. France was required to equalize taxes on both these products.

Article 110(2): Competition goods: Article 110 (2) TFEU states that for competing goods there can be
different taxation. However, difference should be proportionate so as to avoid protectionist effect. Article
110(2) prohibits internal taxations which gives indirect protection to competing goods since it amounts to
an indirect discrimination against imports.

Commission vs Belgium: If the products are not similar but are competing then it is not necessary that
internal tax be identical. However, under Article 110(2)-member state must ensure that internal taxes on
imported goods are such that there is no protective effect for the competing domestic products.

Commission vs Ireland (Period of Grace) Cox: Facts: Goods that were imported had to pay taxes
immediately while domestic goods had a period of grace that is pay taxes in installments.

Held: The breach of Article 110 TFEU is not just as to amount of taxes but also extends to the mode of
taxation so it was held to be a breach of article 110 by granting a period of grace to domestic products.

Commission v Italy: Regenerated oil from Italy had lower taxation rate but imported regenerated oil did
not receive this benefit it was held that since the goods were similar, they would be taxed similarly so
breach of article 110 TFEU was witnessed.

Hensen Jun: Spirits manufactured locally were subjected to lower taxes in Germany it was held that same
subsidy should be given to spirit imported from other member states as well.

Cooperativa Cofrutta: Taxes may apply where there is no equivalent domestic product. ECJ held Italian
tax on imported bananas, was part of internal tax system.

Nygard: Article 110 also operates in situations of exports as well. Pigs were taxed upon exports and this
was held to be a breach of Article 110 TFEU since pigs used for domestic purpose were not taxed.

Effect of Article 110

If there is any breach of Article 30 TFEU then charge would be declared void however if there is a breach
of article 110 then taxes would be tailored or amended so as to remove discrimination or protectionist
effect.

Discrimination:

Direct Indirect

On the basis of origin of goods On the face of it looks neutral but in fact discrimination

Can never be objectively justified Can be objectively be justified

Direct:

Discrimination involves different tax rates depending upon country of origin of goods while indirect
discrimination is when a tax on the face of it seems neutral and no reference is made to origin of goods
but yet the tax is such that it is discriminatory against imported or exported goods.

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 Haahr Petroleum: National rules required Danish ports to impose 40% surcharge on basic charge for
goods unloading from ships. The surcharge was only imposed on Imported goods hence it was a case of
direct discrimination since imposition of tax was based on origin of goods.

Indirect Effect:

Humblot: In France, cars less than 16 CV were taxed normally while cars above 20 CV were subjected to
high taxation rate or special tax. Mr. Humblot imported a 36 CV Mercedes and argued that in France only
cars up till 16 CV were made while above it was imported from other member states.

Held: Special tax imposed on cars which exceeded 16 CV was contrary to Article 110 TFEU since cars
affected by special tax were imported from other member states and no such cars were manufactured
locally in France.

Chemial Farmaceutiei: Where there is direct discrimination there can be no exception. However, in
situation of indirect discrimination there can be only one exception that is objective justification.

Held: “Objective justification is an exception which saved treaty article from being too draconian; the law
should not become rigid, element of flexibility and good reason by member states for discrimination.
DBI v Skatte Ministeriat: High registration tax on new cars sold in Denmark which were all imported there
was no breach of Article 110 because there was no Danish product to be protected.

Haahr Petroleum

Direct discrimination can never be justified.

Commission v France (sweet wine): France gave subsidy on sweet wine while no subsidy was extended
to imported or exported wine.

Held: It was held that this indirect discrimination can be objectively justified since it was an attempt to
provide better infrastructure in the areas of winy wards which were underdeveloped.

3. 3rd Ambit: Non-Monetary Restrictions:

Article 34 prohibits member states from imposing quantative restrictions such as quotas, bans, and
licenses that have on imports and all measures equivalent effect to quantative restrictions. Whereas,
Article 35 extends same prohibition to exports as well.

Commission v Italian Republic: Article 34 reflects the principle of ensuring free access to national markets.

Geddo: This case explained quantative restrictive as measures which amount to total or partial restraint
an imports or exports.

Promalvin: Spanish law laid down requirement on exports of its wine while placing no restriction or
domestic sale, Spanish legislation was held to be quantative restriction which infringed Article 35 TFEU.

There are quantative restrictions by the virtue of Articles 34 & 35 TFEU as Measures Equivalent Quantative
Restrictions (MEQR). MEQR was not defined by the treaty itself but it was defined through directive 70/50

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that is an MEQR is any such non-monetary restriction that makes import or export more difficult or costly.
MEQR is any restriction as to shape, size, composition and weight.

There were three types of breach:

i. Distinctly applicable measures.

ii. Indistinctly applicable measures.
iii. Selling arrangements

How one-member state can impose liability on another member state:

1. Distinctly applicable measures

Article 2 of 70/50 defines distinctly applicable measures as those measures that applies to imports
only and make it more difficult or costly. The example of such measure includes the hygiene inspection
on imports only (Commission vs UK (UHT Milk). Rules requiring importer to be license. Distinctly
applicable measures are those measures prima ficie are discriminatory that is discrimination on the
basis of the basis of origin of goods, they can apply directly between domestic and member state
product and services.

DASSONVILLE: Facts: In Belgium there was requirement on imported whiskey for a certification which
was not required on local whiskey. This case deals with distinctly applicable measures. The claimant was
prevented for selling scotch whiskey without a certificate of origin as required by Belgium law, this
whiskey was imported from France where no certificate of origin was required.

Held: The Belgian rule was regarded as a quantative restriction which was in breach of Article 34 TFEU as
it hindered the trade. Article 34 focuses on hindrance of trade as opposed to discrimination.

Buy Irish: There was a campaign in Ireland to promote Irish goods as opposed to imported goods this was
conducted by the local pressure groups and as per the stats even after that campaign there was no effect
on sale of imported goods. The company brought claim against Ireland for not stopping propaganda on
the imported product was an omission by the government as they stayed silent. It was a quantative
restriction as Irish government took no action against pressure group and it was immaterial whether sale
actually dropped or not. Buy Irish also stands as authority for the principal that Article 34 TFEU focused
on hindrance of trade actually or potentially.

Commission v UK (origin marking): UK legislation required that certain goods should not be sold, unless
they were marked with their country of origin was held to be an MEQR and a breach of Article 34 TFEU.

Spanish Strawberries case: Usually positive action has been required for the breach of Article 34 TFEU,
but it can be infringed by omission as well.

There are four situations of indistinctly applicable measures (examples of non-monetary)

 Origin marking requirement (Commission vs Ireland)
 Packaging requirement (Walter Rau, Mars Case)
 Name restriction (Clinique Case)
 Content Ingredients and process restriction (Red bull case)

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 2. Indistinctly applicable measures
Indistinctly applicable measure which on the face of it are not discriminatory but in fact
proves to be burdensome for the import producers.
CASSIS DI DIJON: In Germany there was a restriction as to competition, where a French liquor
(15%) that was not marked up to the mark of German requirement which is according to
German liquor (25%). It was infringing French right to market, as a lot of burden on French.
This case served as an authority for indistinctly applicable measures, the German
requirement laid down that fruit liquor must have an alcohol strength of 25%. The French
Black Liquor had the strength of 15-20% and it was banned in Germany. The German rule
although prima ficie was not discriminatory but it made it impossible for French
manufacturers to export to Germany since changing the alcohol strength as per German rule
was not economical. This policy hindered access of French product to German market. This
case also gave the principal of mutual recognition and acceptance which means that goods
which are lawfully produced and marketed in one-member state should be able to be
marketed in another member state as well. It was further stated that where there are no
harmonized rules in the union than member state would have their own rules, but member
states could only require imported goods to comply with national rules if following conditions
are met:
i. The rule should be indistinctly applicable; no discrimination
ii. It should be necessary to protect public interest
iii. It should be reasonable and proportionate
Indistinctly applicable measures appear to apply equally to both imported and domestic good
in law but in fact imposed an extra burden on imports because imports than have to comply
with two set of rules that is those of their home state and those of the importing state, which
proves to be dual burden and hindering intra community trade.
Lawful Justifications: (Derogations) Exception of Art-36 applies to both Dist. and Indist.
Derogations are provided under article 36 TFEU by which in some instances the member state
restriction will not be found to be a breach of article 34 TFEU. The rationale behind this is
that there is some ‘overriding consideration’ that takes precedence over the freedom to
move goods. Unlike article 30 TFEU, Article 34 and 35 are not absolute and member states
are provided with an element of leniency by the virtue of Article 36 TFEU. This article is an
exception for distinctly and indistinctly applicable measures.
i. Public Morality

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R v Henn & Derby: Henn & Derby were prohibited from importing obscene films and
magazines from Holland into UK. The exception of public morality would be applicable and
article 36 TFEU confers a discretion on member states to set their own standards of public
morality in accordance with this own social and cultural values.
Conegate: Facts: UK banned inflatable love dolls from Germany however same products were
produced and sold in UK.
Held: The exception of public morality would not be invoked in such a situation and Article
36 would not patronize double standards or arbitrary discrimination and exception must be
applied uniformly.
ii. Public Policy
If a particular restriction against the changing public policy of a particular member state, then
it will be exempted under article 36.
International Traders Ferry: Facts: Lorries carrying livestock for exports required police
protection from animal right protestors for some time this protection was given but later on
it was revoked.
Held: The decision of chief constable to withdraw police protection was not a MEQR as it was
in the interest of public policy. Police had limited resources and member states responsibility
for reassuring FMG must be balanced with rights of residents’ to policing same was decidec
in Commission vs Italy.
iii. Public Security
a. Law & Order
Case law usually falls under INTL LAW.
b. Economic
The rule could only be justified if they are proportionate to the purpose in question and to
be applied in a reasonable and necessary way, however, if domestic policy attempts to
achieve domestic economic objective then it would not be justified.
Campus Oil: The importer of oil product into Ireland were required to buy 35% of the needed
oil from state oil refinery.
The court allowed the exception of public security to be ensured wellbeing of national
industry, if the price was set above market level then it would be prohibited; maintenance of
regular oil supplies which were fundamental to existence of a state was a legitimate aspect
of public security.

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Centre Leclerc: France argued that in the absence of pricing rules there would be civil
disturbances. Public policy could be pleaded but was rejected upon the facts
Effects Doctrine – USA, Osama bin Laden, North Korea, and Cuba
c. Public Health
This exception involves the protection of health and life of humans, animals and plants.
Commission vs Italy (Caffeine): For this derogation to apply member state must prove that
the particular substance which is restricted is harmful that is it possess a risk of health to
human.
Commission vs UK (imports of poultry need): ECJ will consider whether the risk to health is
genuine or a concealed trade restriction; only if the risk is genuine or real, derogation is
invoked.
Doc Morris: German law prohibited the sale of medicines by mail over the internet. This was
held to be indistinctly applicable measure since it prohibited the pharmacy established
outside Germany, from selling medicines to the Germans. This rule could be justified only to
the extent of medicines that could be obtained through a prescription in Germany (hardened
drugs).
Rosengren: Protection of human health ranks foremost on the list of derogations among the
ban could have been valid for health reasons, provided it is not disproportionate.
Commission v UK (UHT MILK): Any inspections that are carried out of an imported goods
might serve as an MEQR as they cause delay and hinder trade. However, there are some tests
which are necessary to be conducted but by doing so the importer state needs to take into
account any tests that are already conducted by the exporter state; if it can be shown those
tests are insufficient then it can require additional costs.
Commission v Germany (additives in beer): Germany prohibited added preservative in beer
while it was permitted in other member states,
ECJ refused argument Germany’s argument by maintaining that added preservatives did not
increase a danger to consumer because so much beer was already consumed in Germany.
Precautionary principle (fall under public health)
SANDOZ: It is that principle where available scientific evidence on the health impact of a
particular substance is unclear. In such a situation member state can decide what level of
protection of health and human life is appropriate, subject to proportionality principle.

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Commission v Denmark: The court affirmed that the member states can adopt their own
procedures and precautions in such a situation. The proper procedure of this principle was
laid down under:
i. The identification of negative consequences for health of the proposed nutrient.
ii. A comprehensive assessment for risk based on most reliable scientific data.
iii. The justification of adoption of restrictive measures,
Mandatory requirements exceptions: ECJ developed these exceptions which applied to
indintinctly

 Derived from Cassis Case

 Apply to only indistinctly applicable measures.

i. Consumer Protection
Walter Rau: The Belgian rule stated that the margarine sold in Belgium should be cube
shaped they based it upon mandatory requirement of consumer protection by maintaining
that it was to prevent consumer from confusion with butter.
It was held to be a disproportionate measure which hindered the trade since same result
could be achieved through clear labelling.
This policy resulted in hindrance of trade for importers from countries where no such packing
requirement was imposed
Commission vs Netherlands: It was held that greater the uncertainty in science and in
practice as to the effect of a particular product, the greater the member state discretion to
apply precautionary principle.
Criminal proceedings against Ditler: Germany’s ban on imported bees to protect native bees
from more aggressive species was justified on animal health grounds and proportionate.
GmBH v CentroSud: In Italy there was a rule that only pasta made from Durham wheat could
be sold this rule was held to be disproportionate and in breach of article 34 TFEU, moreover
clear labeling as to the type of wheat could serve the purpose.
Academic
Stephan Weatherhill: ECJ took a robust view with reference to consumer protection and has
given relatively little attention to the prospects of consumer confusion.

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Lasa: Setting labeling requirements instead of food standards would not protect the
consumers.
ii. Public Health
APESA: Court ruled that article 36 TFEU provides for derogation on this ground and treaty
article must be used in preference to mandatory requirements.
Robertson v ORS: Defense of a consumer can be established as a mandatory requirement.

iii. Protection of Environment

Commission v Austria: Austria placed a ban on Lorries over 7.5tonnes on A12 Highway, and
this highway was the main transit route between Germany and Italy. Held: This rule was not
justified under mandatory requirement exception since alternative route was not provided
by Austria and this policy was disproportionate.
Cintheque: Protection of culture can be established as a mandatory requirement.
Schmidberger: Protection of fundamental right can be established as a mandatory
requirement.
Selling arrangements
Selling arrangements are generally allowed however when a selling arrangement hinder
access to market then it would be caught by article 34 TFEU.
Keck and Mithouard: Selling arrangement are allowed provided they apply to all relevant
traders in the national territory at least in the same way in law and in fact the marketing of
domestic products and imported products. Distinction needs to be drawn between product
requirement and selling arrangement. Product requirement had to be justified under article
36 or mandatory requirement exceptions. Selling arrangement should not be hindering trade
and apply to all traders equally. Selling arrangements would be allowed without violating
article 34 of TFEU. The rule of thumb to distinguish between product requirement and selling
arrangement is to ask, “whether to comply with the rule, the importer has to make any
physical alterations to the product?”. For example, change of ingredient or packaging. If so
then it is the product requirement and if not, then it is a selling arrangement which are
concerned with when and how those are to be sold.
Familia Press v Verlog: Facts: Austrian rule prohibited magazines containing cash prizes for
competition. Familia press was a newspaper publishing in Austria which brought proceedings
against German newspaper being sold in Austria in which prizes were being sold.

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Held: It was not a selling arrangement but because physical alteration in the product was
required which hindered thereby qualified as MEQR capable of being caught by article 34 of
TFEU.
Leclerc Siplec: AG Jacobs identified potential problems with Keck case by stating that
domestic product are clearly know to the consumer which imported products are depending
upon advertisements to enter into market; subjecting imported goods to selling
arrangements would make it more difficult and costly to access to the market thereby failing
the purpose of article 34 of TFEU.
Gourmet International Products: As per Swedish law they were a total ban on alcohol
beverages prohibiting advertisement on radio, TV and magazines. A prohibition on
advertisement was liable to impede access to market for products imported from other
member states more for domestic products which are already known to consumers; strict
measures could be employed to avoid harmful effects of alcohol rather than placing a total
ban on advertisement.
De Agostini: This case refined Keck principle and held that if selling arrangement is conflicting
with access to market principle then it would be a breach of article 34 TFEU.
Post Keck Principal:
Commission v Italy: Courts found that national measures limited the possibility of use of
trailers. Thereby preventing their demand and hindering their impact constituted to MEQR.
Courts dismissed the application of Kech and implicitly rejected the application of Kech to the
selling arrangements and adopted access to market test.
Nickelsson: Restriction is on selling arrangement will not be saved under Kech test and
measures could be justified on the grounds of public policy. AG Kokott suggested extension
of Kech test to selling arrangement and to embrace what would be concisely turned as access
to market test but was rejected.
Selling arrangement examples:
Hunermand
Rules of Advertisements in pharmacies
Punto Casa
Opening hours
Commission v Greece
Restriction on where milk powder can be sold

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Leclerc
Restriction on TV advertisement
Acadamic:

Tamara Singer: www.studocu.com

The CJEU has interpreted too wide to the detriment of the Member States’ freedom. It is almost
impossible for the law and the CJEU to keep pace with different and changing trading and selling
techniques. It is disappointing the ECJ did not take the trouble to clarify the scope and limits of the Keck
principle and should revisit this.

UKEssays. (November 2018). Analysis of the Free Movement of Goods and Services Policy. Retrieved from
https://www.ukessays.com/essays/law/analysis-free-movement-services-2563.php?vref=1
To conclude, the CJEU has moved from a discriminatory based approach to restrictions on the free
movement of goods and services to non-discriminatory one to a market access test. The jurisprudence in
the area isn't clear cut but the general understanding of academics seems to be that the move towards a
non-discriminatory approach was needed to have a successful internal market. The subsequent move to
a market access test seems to be founded on the idea of union citizenship and perhaps a deeper idea of
ultimately, in so far, as possible having the freedoms converge. Through comparison, it is clear that each
section of the free market is different but ultimately the CJEU feels similar. What is evident though is that
the removal of regulatory barriers CJEU feels is needed, across the free movement of persons, goods,
services and establishment, in order to fulfil the aims of the internal market.

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