The free movement of goods and Article 28 EC: an evolving framework

Abstract:

This paper explores the scope of Articles 28 and 30 EC in light of recent case law and calls for a clearer application of the principle of discrimination in this context. The implications of the decision in Keck are re-assessed, challenging, in particular, the more instinctive conclusion that non-discriminatory measures-as understood in relation to the discrimination model preferred here- must lie outside the ambit of Article 28. Having set out a framework which incorporates both discrimination and market access, recent shifts in the breadth of the justification paradigm-and especially in respect of Article 30 EC- will then be examined, asking if the boundaries of that provision can (or should) reflect changing priorities in the domains of justification and the internal market more generally.