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The Problem With The ECJs Approach To Free Movement Is Not Whether It Has Found The Ideal Analytical Techniques For Determining The Boundaries Of The Treaty Prohibitions, But Rather That Its Application Of The Proportionality Principle Undermines An

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  • Essay length: 2583 words
  • Submitted: 25/02/2011
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University Degree European Union Law

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'The Problem With The ECJ's Approach To Free Movement Is Not Whether It Has Found The Ideal Analytical Techniques For Determining The Boundaries Of The Treaty Prohibitions, But Rather That Its Application Of The Proportionality Principle Undermines Any Attempt To Regulate The Market In The Public Interest'

Discuss.

With the creation of the E.C. Treaty1, came the inclusion of the four freedoms. Articles 28, 39, 43 and 492 each prohibit restrictions of the free movement of goods, workers, establishment and services respectively. This essay will be focusing mainly on the European Court of Justice's approach to Article 28 and the free movement of goods, which prohibits quantitative restrictions (QRS) on imports and any measures having equivalent effect (MEQRs)3. When approaching Article 28, the ECJ widened the scope of the free movement rules to focus not solely on those measures which obviously discriminate, but also rules which restrict commercial or economic freedom where there is no element of discrimination involved.

Beginning in Dassonville4, the ECJ declared Article 28 covers measures which 'whether the law directly or indirectly, actually or potentially is capable of hindering intra-community trade'5. Supplementing this, Cassis de Dijon6, extended the scope of

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