Trailing the Trailers in Search for a Typology of Barriers: Sketching a Scale of Relative Gravity and Exploring its Implications

Cahiers Du CeDIE Working Papers No. 2012/6

20 Pages Posted: 22 Jun 2012

Date Written: June 13, 2012

Abstract

Using the Italian Trailers judgment of the European Court of Justice as an entry point, the present paper attempts to develop an effects-driven typology of barriers to cross-border trade in goods within the EU based on their trade-distorting potential, i.e., their relative gravity. In so doing, it endeavors to make room for barriers that are deemed to have the “object” (or “nature”) of restricting the free movement of goods by ascribing legal significance to that notion of object as entailing a presumption of trade-distorting effects. In turn, it ambitions to substantiate an intuitive link between the relative gravity of barriers to trade and the intensity of the proportionality assessment carried out by the Court to determine their compatibility with the internal market. In other words, it ventures that the trade-distorting potential of a national rule or measure may influence (together with other factors) the probability that such measure would eventually be found compatible with the free movement of goods. Hence, it posits that the proposed typology could be relevant to the two branches of the bifurcated analytical pattern determining the existence of a breach of Article 34 TFEU.

Keywords: EU internal market law , Free movement of good, Object/Effect, Typology of barriers, Gravity, Trade-distorting potential, Market access, Discrimination, Conditions concerning product characteristics, Selling arrangements, Usage restrictions, Compatibility, Proportionality, Adequacy, Equivalence

JEL Classification: K29

Suggested Citation

Gerard, Damien M. B., Trailing the Trailers in Search for a Typology of Barriers: Sketching a Scale of Relative Gravity and Exploring its Implications (June 13, 2012). Cahiers Du CeDIE Working Papers No. 2012/6, Available at SSRN: https://ssrn.com/abstract=2088945 or http://dx.doi.org/10.2139/ssrn.2088945

Damien M. B. Gerard (Contact Author)

University of Louvain - CeDIE ( email )

Place Montesquieu, 2
Louvain-la-Neuve, 1348
Belgium

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