INTRODUCTION: AIMS AND OBJECTIVES
Aim - The aim of the present research is to analyze the free movement of goods on EU law assignment.
Objectives – In order to fulfill the above aim, the below mentioned objectives have been met in a sequential order.
- To understand rules regarding the free movement of goods in the European Union.
- To identify the quantitative restrictions and the measures having equivalent effect.
- To examine the outer limits of Article 28.
CHAPTER 1: INTRODUCTION
The free movement of goods is among the success tales of the European Union project. This constitutes one of the four main freedoms based on which the comprehension of a European common market is seen to be characterized. The free movement of capital, services, persons and goods are the means for creating one common/internal European market and hence the bedrock of the European Union. The member nations might not, by any means obstruct the creation of an internal market and hence the formation of the European Union. Putting restrictions on this free movement is rigorously prohibited, unless the member nation has a justified reason1.
The provisions concerning the free movement of goods in the European Union are articles 28 to 31. Article 28 has long been the matter of much interpretation by the judiciaries. Earlier almost all national measures which in any manner impacted products from other member nations can be caught by article 28. As a consequence, it has turned out to be a loose tiger.
1.2 Measures of equivalent effect to quantitative restrictions
As defined in the case of Riseria Luigi Geddo vs. Ente Nazionale Risi, quantitative restrictions are those measures which amount to a partial or complete restraint on goods in transit, exports or imports. Article 28 states that Quantitative restriction on imports and other measures that have equivalent effect will be forbidden between member nations. Measures Equivalent to Quantitative Restrictions as defined in the case of Dassonville are all those trading rules enforced by member nations which can directly or indirectly, potentially or actually hinder intra Union trade1.
CHAPTER 2 DEVELOPMENT OF CASE LAW ON ARTICLE 28 TFEU
This section keeps a significant importance in the area of the research as it is consists of views of different authors about the topic. According to Saunders literature review is the process of reading, analyzing and summarizing scholarly materials about the particular topic of the study. The chapter reflects the examination of different theories and models established regarding the topic of the research. Here the aim of the researcher is to evaluate the free movement of goods within the EU law. Literature review will help in understanding the rules about the free movement of goods in the EU Law1. It will also identify the quantitative restrictions and the measures having equivalent effect. At last it will examine the outer limits of article 28.
The free movement of goods lies in the success areas of the European Union project. Movement is regarding the capital, services, persons and services. The provisions and rules related with the movement in the EU are articles 28 to 312. Here article 28 has been a subject of more evaluation for the judiciaries. As discussed earlier all national measures which in any manner affected goods and services from other member countries can be caught by article 28. As a result it has turned out to be a loose tiger. After that, requirement arises to impose some restrictions to this phenomenon. When the national measures were not in the purview of article 28, a common principle was needed for identifying.
Basic rules - Dassonville & Cassis de Dejon
The basic principle related to the MEQR was laid down by the Court in the case of Dassonville. A court in Belgium wanted that a preliminary ruling to be set under the article 234 to the question whether a national rule requiring imported products holding a designation of origin be accompanied by a certificate of the government of the producing country was in compliance with article 281. In such situation the Court points out the views that all rules related to trading laid down by the Member States and which have the potential of hindering directly or indirectly, potentially or actually, intra-community trade are to be regarded as the activities having an impact equivalent to quantitative restrictions.
CHAPTER 3: RE- EXAMINING THE COURTS CASE LAW – POST KECK CASES
The theory that the challenged measure does comprise of selling arrangement does not signify that it would escape article 28 in automatic way of an individual applied the Keck formula. It is important that the measure must fulfil the two requirements of the test. One of them is that rule must apply to all the traders and second one is that it must impact them in equal manner in law and in fact. Simply by identifying that the national measure is a selling arrangement it becomes easy to discharge the pre-Keck cases related. It is also easy to dismiss the cases by concluding that it no longer comprises of good law. It is also essential to take into consideration the difference between a justified measure and that one which has escaped the article 28 entirely1.
Additionally, one of the major critiques apart from formalization of ruling was that formula of Keck was being left with outer spheres issues that are focusing on the isolation of national markets and the facts that a measure can be balanced on legal grounds and also screen off a national market from regional traders and other Member States1. Issues that are being focusing upon this matter is being mentioned above and it can be articulate from this that court actually considered market access approach but the facts is undoubtedly exist that they are not that clear as it is being required.
CHAPTER 4: CONCLUSION
In the above study almost all the questions that arose in connection with the ruling in Keck have been answered through a case by case implementation of the Keck formula. When the formula was offered it strikes with the introduction of the principle of subsidiarity there was a requirement to set the appropriate bonds to article 28. It is the situation where the member states rights to execute regulatory powers was taken into consideration. The ruling in Keck acknowledged that right by realizing the Member States. Without being accused of prohibiting the free movement of goods the states need to put control on certain trading situations. Another thing is that phenomenon of selling arrangements has now become clear and now it is know that it comes into force when, where and by whom goods may be sold, price controls and advertising barriers. As discusses that a national measure keeping control on advertising may also impact the free movement of goods and services.
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