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Justifying Restrictions on the Free Movement of Goods: The Relationship between the Justifications listed in Article 36 TFEU and the Mandatory Requirements

Steinarsdottir, Auður Ýr LU (2010) JAEM03 20101
Department of Law
Abstract
The European Court of Justice has established many fundamental principles with its case law, but one of the most important was created in the Cassis de Dijon case, where an open-ended list of mandatory requirements was first introduced, opening up new possibilities for Member States to justify measures that hinder the free movement of goods.

One question has however not been answered, and that is the question of the relationship between the mandatory requirements and the exhaustive list over derogations that is provided for in article 36 TFEU.
The conditions for applying those two different sources of derogations differ, depending on whether the disputed measure is distinctly or indistinctly applicable.
The case law of the Court... (More)
The European Court of Justice has established many fundamental principles with its case law, but one of the most important was created in the Cassis de Dijon case, where an open-ended list of mandatory requirements was first introduced, opening up new possibilities for Member States to justify measures that hinder the free movement of goods.

One question has however not been answered, and that is the question of the relationship between the mandatory requirements and the exhaustive list over derogations that is provided for in article 36 TFEU.
The conditions for applying those two different sources of derogations differ, depending on whether the disputed measure is distinctly or indistinctly applicable.
The case law of the Court has been somewhat confusing on the matter and therefore commentators and even Advocates Generals have been calling for a clarification from the Court.

A few different theories have been put forward by scholars in order to explain the mandatory requirements doctrine.
Questions have mainly arisen on whether the Court wants to keep the distinction between the derogations in article 36 and the mandatory requirements, or if it is in fact trying to slowly erase the dividing line with its constantly evolving case law?

One thing is for sure, and that is that the European Court of Justice must act soon in order to provide for some needed legal certainty on the matter. (Less)
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author
Steinarsdottir, Auður Ýr LU
supervisor
organization
course
JAEM03 20101
year
type
H2 - Master's Degree (Two Years)
subject
keywords
European Business Law
language
English
id
1692649
date added to LUP
2010-10-15 14:16:17
date last changed
2010-10-15 14:16:17
@misc{1692649,
  abstract     = {The European Court of Justice has established many fundamental principles with its case law, but one of the most important was created in the Cassis de Dijon case, where an open-ended list of mandatory requirements was first introduced, opening up new possibilities for Member States to justify measures that hinder the free movement of goods. 

One question has however not been answered, and that is the question of the relationship between the mandatory requirements and the exhaustive list over derogations that is provided for in article 36 TFEU. 
The conditions for applying those two different sources of derogations differ, depending on whether the disputed measure is distinctly or indistinctly applicable. 
The case law of the Court has been somewhat confusing on the matter and therefore commentators and even Advocates Generals have been calling for a clarification from the Court.

A few different theories have been put forward by scholars in order to explain the mandatory requirements doctrine. 
Questions have mainly arisen on whether the Court wants to keep the distinction between the derogations in article 36 and the mandatory requirements, or if it is in fact trying to slowly erase the dividing line with its constantly evolving case law?   

One thing is for sure, and that is that the European Court of Justice must act soon in order to provide for some needed legal certainty on the matter.},
  author       = {Steinarsdottir, Auður Ýr},
  keyword      = {European Business Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Justifying Restrictions on the Free Movement of Goods: The Relationship between the Justifications listed in Article 36 TFEU and the Mandatory Requirements},
  year         = {2010},
}