Breaking through borders

An updated version of an exhaustive but informative law book puts the single market in the dock.

At over 500 pages this is a substantial work and in its latest and greatly expanded edition is a leading authority on one of the fundamental principles that underpins the EU: the free movement of goods. 

The importance of the subject cannot be overstated. From the outset the founding fathers of the Union envisaged a “common market” in which goods would flow freely across borders without being subject to customs duties or other limitations. And as the Union has grown to encompass 27 member states with a combined population exceeding 500 million, the value attributed to that internal market in goods now approaches €2,500 billion, according to Eurostat, the European Commission’s statistics office.

The first edition of this work, published in 1982, was authored by Peter Oliver alone. Now that the size and complexity of the task have increased, he is ably assisted by a team of six other contributors.

The focus is on just three articles (Articles 34 to 36) of the Treaty on the Functioning of the European Union. Those articles lay down the overriding principle that goods lawfully manufactured in one member state should be permitted to be sold to citizens living in other member states, save where there are exceptional reasons to prevent such sales. In other words, if a wine of a given alcoholic strength is approved in France as safe for French consumers, it will be presumed that it should be possible to sell it throughout the Union, and any government that wants to prevent its importation on alleged health or other grounds will face an uphill task and judicial scepticism.

The brevity of those provisions has obliged the European courts to interpret them and periodically to adjust the interpretations in line with the evolution of the EU. Indeed that potential for “mission creep” and the purposive approach of “unelected judges” is one aspect of the EU that most troubles Eurosceptics.

Modern issues

In considering the development of the law, the authors have reviewed the more than 100 judgments delivered by the European courts since the previous edition in 2003. All of the significant cases are clearly explained and put into context. They tackle issues not conceived of when the Union was founded, such as authorisation of DVDs for minors and internet sales of medicines.

The approach throughout is to explain the facts and reasoning and then present a succinct conclusion of what the court found, or in some cases what it ought to have found. The fact that the courts have been kept so busy on free movement issues shows that despite having signed up to the treaty and to the idea of a borderless EU, many member states are still erecting barriers to trade. Some cases turn on whether a measure is legitimate to protect standards or is really disguised trade protectionism, such as a requirement that ham should need to be not only produced but also sliced in the region to qualify for the “parma ham” designation.

Fact File

Oliver on Free Movement of Goods in the European Union
Edited by Peter Oliver
(628 pages)
Hart Publishing, €110

One of the most difficult debates in recent years has been over how far member states may go to preserve certain aspects of their way of life, such as limitations on Sunday trading, which clearly pursue cultural and employment objectives but also have an impact on trade. The authors explain the development of the distinction between laws that clearly target the types of goods that can be sold and those that have an impact only on the manner in which they may be sold.

The different policy grounds – such as public morality, security and press diversity – that may be advanced to justify limitations on cross-border flows of goods are also examined.

The book is well structured and easy to navigate. The introduction of a separate chapter relating to intellectual property is welcome given the number of cases in that area. There are also separate chapters on areas such as agriculture and fisheries, state monopolies, and the relationship with Norway, Iceland and Liechtenstein, the EU’s partners in the European Economic Area – within which the same free movement rules apply.

Ease of navigation is greatly aided by case tables, statute tables and a comprehensive index. It is an impressive work and one that I hope will circulate widely within the EU.

Stephen Kinsella is head of the EU competition law group at Sidley, a law firm based in Brussels.

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