In Memoriam Keck: The Reformation of the EU Law on the Free Movement of Goods
Ioannis Lianos, In Memoriam Keck: The Reformation of the EU law on the free movement of goods, CLES Research Paper series 5/2014
29 Pages Posted: 27 Dec 2014
Date Written: June 1, 2014
Abstract
The Keck and Mithouard case law of the CJEU constituted an important milestone in the effort to develop workable principles for the interpretation of Article 34 TFEU in a way that would not jeopardize the ability of Member States to regulate their economy and pursue other public policy objectives than promoting trade. Yet it seems that the Keck era has come to an end. In its most recent case law on free movement of goods the Court returned to an overbroad definition of MEQR, using the notion of “market access”, and restricted the legal categorization approach previously used in favour of one that would rely on the balancing of conflicting interests and values. The paper first explores the rise and progressive demise of the legal categorization approach before focusing, in a second part, on the return to a broad definition of what may constitute an obstacle to trade, under Article 34 TFEU, with a re-interpretation of the market access rule. The broader implications of this approach are then examined, in particular the reformation of the free movement of goods EU law in the era of the EU/Canada Comprehensive Trade and Economic Agreement (CETA) and the ongoing negotiations on the Transatlantic Trade and Investment Partnership (TTIP).
Keywords: free movement of goods, regulatory policy space, CETA, TTIP, EU Internal Market, trade, measures equivalent to a quantitative restriction
JEL Classification: F15, K33
Suggested Citation: Suggested Citation