Re-evaluating the mandatory requirements and Art. 36 TFEU of the free movement of goods : an analysis on environmental protection exception

Abstract

The free movement of goods is one of the most viable freedoms for the European Union which helped establish the single market. Having a successful single market for goods merely leads to the Union’s continuous survival in this vast globalized economy. Thus, it is critical that actions associated with the free flow of goods are interpreted narrowly. That being said, the free movement of goods within the EU is alas far from perfect. This is especially when it comes to the Treaty provision known as Art. 36 TFEU and to the case law of the mandatory requirements. The main problem is that Art. 36 TFEU and the mandatory requirements entails specific circumstances to be met which in their very own nature tend to differ from each other. This mainly corresponds on the principle that Art. 36 TFEU could justify distinctly and indistinctly applicable measures. Meanwhile the mandatory requirements, such as that of the protection of the environment, can only justify indistinctly applicable measures. Such principle has led the Union Court to take a flexible approach on the matter. It has shown a tendency to disregard whether the action in question is distinctly or indistinctly applicable. This is remarkably noted with cases that concern the protection of the environment; it seems that the Court had in fact taken a different stance on the subject. Due to this purpose, this dissertation attempts to delve on this in further detail to analyse thoroughly on how the Court has interpreted environmental protection in relation to trade. After all, having different interpretation merely means for increased complexities and confusion towards this fundamental freedom so crucial to the European Union.