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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'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 Article 28 to include both distinctly applicable rules (measures which are directly discriminatory and only apply to imported goods) and indistinctly applicable measures (rule which do not discriminate in law, but does in fact, making it more difficult or less favourable for the non-national to comply with).
If regulating the market is to allow the free movement of goods, an outright ban doesn't actually regulate the market, as it completely refuses the fundamental freedom of the movement of goods to exist in relation to the goods concerned here - pornographic material, from being imported into the UK. In support, Shucineck24 states outright bans on products will always be difficult to justify on proportionality grounds unless there is a clear risk that cannot be dealt with in any other way. However, when attempting to regulate the market, the ECJ must balance market regulation with state autonomy. As there is no uniform scale of moral values across the EU, each member states takes its own public policy regarding its moral stance, the Court wants to regulate the market having strong regard to public interests. Furthermore, a national court when applying the proportionality test, will do its best to protect its state interest. Therefore, the outright ban was actually proportional to the aim of the UK to protect public decency, highlighted by the fact that there was a general prohibition on the manufacture and marketing of such goods in the UK and the Obscene Publications Act25. Therefore, on the surface, the proportionality principle has undermined attempts to regulate the market. However, when comparing this to regulating the market in the public interest, then the undermining is in fact justified. Environmental concerns as a matter of public interest have also been held to be a legitimate and proportional derogation from Article 29.
Sindaco del Commune di Capena  ECR I-2355 Cases C-401, 402/92 Tankstation Heustke  ECR I-2199 11 C-412/93 Leclerc-Siplec v. T1 Publicite  ECR I-179 12 Single European Act 1986 13 Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon) [1974 ECR 649 14 Case 261/81 Rau  ECR 3961 15 ibid 16 C, Barnard, The Substantive Law Of The EU 2nd Edition (Oxford University Press, 2007) p.119 17 T. Tridimas, 'Proportionality in Community Law: Searching for the Appropriate Standard of Scrutiny'p.68 18 Shops Act 1950 19 Case C-145/88 Torfaen Bourough Council v. B&Q plc  ECR 3851 20 C, Barnard, The Substantive Law Of The EU 2nd Edition (Oxford University Press, 2007) p.142 21 Case B&Q v, Shrewsbury & Atcham BC  3 CMLR 535 22 Stoke on Trent City Council v. B&Q  3 CMLR 31 23 Case 34/79, R v Henn & Derby  ECR 3795 24 J. Steiner, l. Woods & C. Twigg-Flesner, EU Law, 10th edition (Oxford University Press, 2009), p. 221 25 Obscene Publications Act 1964 26 Case 302/86 Commission v. Denmark ECR 4607 27 C, Barnard, The Substantive Law Of The EU 2nd Edition (Oxford University Press, 2007) p. 28 Case C-112, Schmidberger v. Austria  ECR I-5659 29 Case 178/84, Commission v. Germany (Beer Purity)  ECR 1227 30 Case C-254/98, Heimdienst  ECR I-151 31 C, Barnard, The Substantive Law Of The EU 2nd Edition (Oxford University Press, 2007) p. 32 Case C-220/98, Estee Lauder Cosmetics GmbH v. Lancaster Group GmbH  ECR I-117 33 Case C-315/92, Verband Sozialier Wettbewerbe v. Clinique Laboratories SNC  ECR I-317 ?? ?? ?? ??
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