Unearthing buried treasure: Article 34 TFEU and the exclusionary rules

This article examines the substance, function and interaction of three key judicial devices developed by the Court of Justice in order to manage the scope of Art 34 TFEU on the free movement of goods within the internal market.

It argues that, viewed collectively, these 'exclusionary rules' can be read as a consistent and normatively sound attempt on the Court’s part to exclude from the scope of that provision non-discriminatory national rules that simply define the conditions for economic activity within individual States. At a time when the Court is again demonstrating its willingness to scrutinise such rules as obstacles to intra-EU movement, it is argued that it should change course and rationalise and reassert its exclusionary rules jurisprudence.

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