Barnard, Catherine --- "Free Movement of Goods and Services" [2008] ELECD 229; in Moser, Philip; Sawyer, Katrine (eds), "Making Community Law" (Edward Elgar Publishing, 2008)

Book Title: Making Community Law

Editor(s): Moser, Philip; Sawyer, Katrine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847201379

Section: Chapter 6

Section Title: Free Movement of Goods and Services

Author(s): Barnard, Catherine

Number of pages: 35

Extract:

6. Free movement of goods and services
Catherine Barnard1

INTRODUCTION
I feel honoured to be asked to participate in this collection. Francis Jacobs's
Opinions have deepened my understanding of the debates surrounding the
meaning and implications of the internal market. He has helped me frame my
thinking and writing on the subject, and I am deeply grateful. Given the huge
influence he has had on my thoughts, it is difficult to be critical of his contri-
bution and so my aim in this chapter is to outline the areas in which Francis
has made the most significant contribution to the jurisprudence on the internal
market, and to focus on two particular areas where problems remain. I will
begin by considering his approach to establishing breach of the treaty looking
first at the free movement of goods.


FREE MOVEMENT OF GOODS
From Keck to Leclerc-Siplec

The Keck2 case law was greeted with relief and criticism in equal measure. As
is now well known, in Keck the Court drew a distinction between `product
requirements' and `certain selling arrangements'. In respect of `product
requirements', the Court confirmed that the principles in Cassis continued to
apply3 and so any such national measures breached Article 28 unless they
could be justified by mandatory requirements and the steps taken were propor-
tionate. In respect of `certain selling arrangements', the Court said in para-
graph 16 that:




1 Fellow in Law, Trinity College, University of Cambridge.
2 Joined Cases C-267 & 268/91 Keck and ...