The Court's Jurisprudence on Free Movement of Goods: Pragmatic Presumptions, Not Philosophical Principles

European Journal of Consumer Law/Revue Europeenne de Droit de la Consommation, 2012/2 p. 25

14 Pages Posted: 16 Aug 2012 Last revised: 5 Aug 2014

See all articles by Gareth T. Davies

Gareth T. Davies

VU University Amsterdam, Faculty of Law

Date Written: August 15, 2012

Abstract

The Court of Justice's case law on the free movement of goods varies in the reasoning and formulas which support the decisions. Such variations are often understood by academics as representing judicial uncertainty, or ambiguity, or variability concerning the fundamental principles of the law: what is Article 34 about, in the eyes of the Court? On the contrary, this paper suggests that there is no realistic debate about the goals and underling principles of Article 34. The only remotely plausible reading is that the article aims to combat protectionism. However, the difficult question, which is what the case law is all about, is what kind of things have to be proved, and by whom, in order to determine whether protectionism exists? The case law represents an ongoing search for a series of pragmatic presumptions which broadly correspond to the goals of Article 34, while keeping judicial workload, evidential burdens, and legal clarity within acceptable limits. The recent cases on use of goods are examples of such compromise - they are not about fundamental principles, but merely develop a practical rule of thumb, in the light of a new fact set. Such development of presumptions of fact helps translate an economic policy goal - an undistorted internal market - into workable law.

Suggested Citation

Davies, Gareth T., The Court's Jurisprudence on Free Movement of Goods: Pragmatic Presumptions, Not Philosophical Principles (August 15, 2012). European Journal of Consumer Law/Revue Europeenne de Droit de la Consommation, 2012/2 p. 25, Available at SSRN: https://ssrn.com/abstract=2129758

Gareth T. Davies (Contact Author)

VU University Amsterdam, Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands

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