Free Movement of Goods: Customs Union, Quantitative Restrictions, and Equivalent Measures

Free Movement of Goods: Customs Union, Quantitative Restrictions, and Equivalent Measures

1. Introduction

The free movement of goods is one of the oldest and most extensively developed principles of European Union law. It was central to the original project of European economic integration and remains a fundamental component of the Single Market. Its purpose is to ensure that goods can circulate between Member States without customs duties, quantitative restrictions, or national measures that create unjustified obstacles to cross-border trade.

The legal framework is broader than a prohibition on tariffs and import quotas. It addresses the many ways in which national regulation can restrict access to another Member State’s market. A product may encounter no customs duty but still be excluded because of different national requirements concerning its composition, labelling, packaging, certification, marketing, or permitted uses. The Treaties therefore establish rules governing both direct trade barriers and measures that produce equivalent effects.

The principal provisions are Articles 28–37 of the Treaty on the Functioning of the European Union (TFEU). They regulate the customs union, prohibit customs duties and charges having equivalent effect, restrict quantitative import and export barriers, and establish limited grounds on which Member States may justify restrictions. Article 110 TFEU complements this framework by prohibiting discriminatory or protective internal taxation.

The Court of Justice of the European Union (CJEU) has played a decisive role in defining the practical meaning of these provisions. Its judgments in Dassonville, Cassis de Dijon, and Keck and Mithouard established principles that continue to shape national product regulation and cross-border trade. Later decisions have developed the concepts of market access, mutual recognition, proportionality, and legitimate public-interest restrictions.

The free movement of goods is not a demand that Member States abandon product regulation. Consumer safety, public health, environmental protection, and other public interests remain legitimate regulatory objectives. The central legal question is whether national measures pursue such objectives consistently with EU law and without imposing unnecessary barriers on trade.

2. Treaty Foundations of the Free Movement of Goods

The legal framework begins with Article 26 TFEU, which defines the internal market as an area without internal frontiers in which the free movement of goods, persons, services, and capital is ensured.

Articles 28–37 TFEU provide the more specific legal rules governing goods.

Article 28 establishes the customs union, which covers all trade in goods and involves the prohibition of customs duties on imports and exports between Member States, together with the adoption of a common customs tariff in relations with third countries.

Article 30 prohibits customs duties on imports and exports and charges having equivalent effect between Member States.

Article 34 prohibits quantitative restrictions on imports and measures having equivalent effect.

Article 35 establishes the corresponding prohibition concerning exports.

Article 36 permits certain derogations from Articles 34 and 35 on specified public-interest grounds, subject to strict limitations.

Article 37 concerns the adjustment of state commercial monopolies so that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.

These provisions address different forms of market obstruction. Their legal classification matters because the applicable prohibitions, exceptions, and methods of justification are not identical.

For example, a charge imposed simply because goods cross an internal EU border is principally examined under Article 30. A national technical requirement that makes imported goods more difficult to market is generally assessed under Article 34. A discriminatory domestic tax may instead fall under Article 110.

The legal analysis must therefore identify the nature and practical effect of the national measure before determining which Treaty provision applies.

3. The EU Customs Union

3.1 Establishment and legal character

The EU customs union was established in 1968, ahead of the original timetable envisaged by the Treaty of Rome. It removed customs duties between Member States and introduced a common external customs tariff.

The customs union is a central element of the internal market, but it is not identical to the Single Market. It addresses customs barriers and the treatment of goods entering the Union from outside. The wider Single Market also addresses regulatory and administrative obstacles affecting the movement of goods and other economic freedoms.

The customs union is an area of exclusive EU competence under Article 3(1)(a) TFEU. Member States administer customs procedures and enforce applicable rules, but they do so within a common EU legal framework.

3.2 No customs duties between Member States

The abolition of customs duties between Member States is fundamental to the customs union.

A Member State cannot impose a customs duty on goods merely because they are being imported from another Member State. Nor may it impose a corresponding export duty on goods leaving its territory for another Member State.

This prohibition applies regardless of whether the charge is described as a customs duty, administrative fee, inspection charge, statistical levy, or another form of payment. The legal classification depends on the substance and circumstances of the charge, not its national label.

The purpose is to prevent Member States from recreating internal customs barriers through different terminology or administrative arrangements.

3.3 The common external customs tariff

The customs union also requires Member States to apply a common customs tariff to goods imported from outside the EU.

This means that an importer cannot ordinarily select a Member State simply because it has a more favourable national customs duty. The applicable customs tariff is determined under EU rules, including the classification and origin of the goods.

The Common Customs Tariff is supported by the EU’s integrated customs tariff database, TARIC, which brings together tariff measures and other relevant commercial and agricultural measures.

The common tariff is important for the integrity of the customs union. Without it, goods could enter through the Member State applying the lowest external tariff and then circulate into other Member States, undermining the common customs policy.

3.4 Union goods and goods from third countries

The free movement framework applies to goods originating in Member States and to qualifying goods from third countries that have been placed in free circulation within the Union.

Article 28(2) TFEU expressly extends the relevant Treaty provisions to products originating in Member States and to products coming from third countries that are in free circulation in the Member States.

Under the Union Customs Code, Regulation (EU) No 952/2013, goods are placed under the customs procedure known as release for free circulation when the applicable import conditions have been fulfilled. This normally involves payment of customs duties where due, compliance with relevant commercial policy measures, and completion of the required import formalities.

Once goods from a third country have been released for free circulation, they acquire the customs status of Union goods and may generally circulate within the customs territory of the Union without further customs duties between Member States.

This does not mean that every regulatory requirement disappears. Imported products must still comply with applicable EU product legislation, and national authorities retain powers to enforce legitimate health, safety, environmental, and consumer-protection requirements.

The distinction between customs status and regulatory compliance is essential. Customs clearance does not establish that a product satisfies every legal requirement governing its sale or use.

3.5 The Union Customs Code

The principal legal instrument governing customs procedures is Regulation (EU) No 952/2013, known as the Union Customs Code (UCC).

It establishes common rules concerning the entry, exit, transit, storage, and customs status of goods. It also regulates customs declarations, customs procedures, customs debt, customs representation, guarantees, and customs controls.

The UCC seeks to create a uniform customs framework while allowing national customs authorities to administer the system.

Customs controls remain necessary, particularly at the external borders of the Union. They serve not only to collect customs duties but also to enforce trade restrictions, protect consumers, prevent the entry of dangerous products, and combat fraud and illicit trade.

The customs union therefore does not eliminate customs administration. It replaces separate national customs territories and tariff systems with a common framework.

4. Customs Duties and Charges Having Equivalent Effect

4.1 Article 30 TFEU

Article 30 TFEU prohibits customs duties on imports and exports and all charges having equivalent effect between Member States.

The prohibition is strict. Unlike restrictions under Articles 34 and 35, a charge falling within Article 30 cannot ordinarily be justified by invoking public health, environmental protection, consumer interests, or other general public objectives.

The reason is structural. A charge imposed because goods cross an internal border recreates the very fiscal obstacle that the customs union was established to eliminate.

4.2 Meaning of a charge having equivalent effect

The concept of a charge having equivalent effect is interpreted broadly.

In Commission v Italy (Case 24/68), the Court established that a pecuniary charge, however small and whatever its designation or method of application, which is imposed unilaterally on goods because they cross a frontier, may constitute a charge having equivalent effect even if it is not collected for the benefit of the state.

The legal test focuses on the connection between the charge and the movement of goods across the border.

A charge may fall within Article 30 even if it:

• Is imposed only on imported goods.
• Is collected by a private body acting under state authority.
• Is described as an administrative or statistical fee.
• Is relatively small.
• Is imposed for a purpose unrelated to raising public revenue.

The decisive issue is whether the payment is imposed by reason of the cross-border movement of goods.

4.3 Charges imposed for inspections

A particularly important question concerns payments demanded for inspections or controls.

A Member State cannot ordinarily impose a charge on imported goods for inspections carried out solely under its own national regulatory system. Such a charge may constitute a charge having equivalent effect.

However, the Court has recognised limited circumstances in which a payment for a service or inspection may fall outside Article 30.

A charge may be permissible where it represents payment for a specific service actually provided to the trader, rather than a general benefit to the public, and is proportionate to the cost of that service.

Similarly, certain inspections required by EU law may justify charges where the applicable EU legislation provides for them and the conditions established by EU law are satisfied.

The distinction is between a genuine service or legally authorised inspection charge and a fiscal burden imposed simply because goods cross an internal border.

4.4 The distinction between Article 30 and Article 110 TFEU

Article 30 and Article 110 address different forms of financial obstruction.

Article 30 concerns charges imposed because goods cross a border. Article 110 concerns internal taxation imposed within a national tax system.

A national tax may apply to both domestic and imported products, but it may still violate Article 110 if it discriminates against imported goods or protects domestic production.

In Commission v France (Case 90/79), the Court examined discriminatory taxation and the relationship between customs-related charges and internal taxation.

The classification of a measure is important because Article 30 does not permit the same kinds of justifications as Article 110. A Member State cannot avoid Article 30 by describing a border charge as an internal tax if its substance reveals that it is imposed because goods cross the frontier.

5. Quantitative Restrictions on Imports

5.1 Meaning of quantitative restrictions

Article 34 TFEU prohibits quantitative restrictions on imports between Member States.

A quantitative restriction is a measure that limits the quantity or value of goods that may be imported. It may take the form of a complete prohibition, an import quota, a licensing system that restricts quantities, or another measure establishing a numerical or equivalent limit.

In Geddo v Ente Nazionale Risi (Case 2/73), the Court described quantitative restrictions as measures amounting to a total or partial restraint, according to the circumstances, on imports, exports, or goods in transit.

The restriction does not have to be a complete prohibition. A system allowing only a fixed quantity of a product to enter a Member State may fall within Article 34.

5.2 Direct and indirect restrictions

Quantitative restrictions may be direct or indirect.

A direct restriction exists where national legislation expressly prohibits imports or establishes a numerical ceiling.

An indirect restriction may arise where an administrative licensing system, allocation mechanism, or other procedure has the practical effect of limiting the quantity of imported goods.

The legal assessment considers the real operation of the measure. A national authority cannot avoid Article 34 merely by using administrative procedures rather than an express statutory quota.

5.3 Import licensing and authorisation systems

Licensing systems may be legitimate in areas requiring regulatory supervision, but they must not operate as unjustified restrictions on imports.

Where a licence is required only for imported goods, or where the conditions for obtaining it impose additional burdens on foreign products, the measure may constitute a quantitative restriction or a measure having equivalent effect.

Even where a licensing system applies to domestic and imported goods, its practical operation may create an unjustified obstacle to cross-border trade.

National authorities must therefore ensure that authorisation procedures are transparent, objective, proportionate, and consistent with the applicable EU rules.

6. Measures Having Equivalent Effect to Quantitative Restrictions

6.1 The Dassonville formula

The most influential judicial definition of measures having equivalent effect was established in Procureur du Roi v Dassonville (Case 8/74).

The Court held that:

‘All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.’

This formula gave Article 34 a broad scope.

It recognised that national authorities could obstruct trade without imposing formal quotas or prohibitions. A requirement concerning product composition, labelling, packaging, presentation, or certification might make it more difficult for goods lawfully marketed in one Member State to enter another.

The Court’s approach focuses on the effects of national measures rather than merely their formal classification.

The restriction does not have to be discriminatory. A rule that applies equally to domestic and imported products may still hinder trade if it requires imported goods to satisfy additional or different conditions.

6.2 Product requirements

Product requirements concern the characteristics of the goods themselves.

They may relate to:

• Composition and ingredients.
• Design and dimensions.
• Weight and size.
• Packaging and presentation.
• Product designation and commercial description.
• Labelling and language requirements.
• Manufacturing methods.
• Technical specifications and certification.

Suppose a manufacturer lawfully produces a beverage in one Member State. A second Member State requires a different minimum alcohol content or a particular production method before the beverage can be sold domestically.

Even if the requirement applies to all products, it may force the manufacturer to modify the product specifically for the second market. The resulting additional costs and regulatory burdens may constitute a measure having equivalent effect under Article 34.

The principle is not that national product requirements are automatically unlawful. Rather, in the absence of harmonisation, they must be assessed under the Treaty rules, including mutual recognition and possible justifications.

6.3 The practical importance of the Dassonville approach

The Dassonville formula prevents Member States from undermining the customs union through non-fiscal barriers.

A customs duty is easy to identify because it is a monetary charge imposed at the border. Regulatory barriers may be less visible. They can arise from administrative requirements, technical rules, or commercial restrictions that make access to a national market more difficult.

The broad interpretation of Article 34 therefore reflects the economic reality that trade can be obstructed through regulation as effectively as through tariffs.

Nevertheless, the formula cannot be applied without limits. If every national rule with some remote or speculative economic consequence were automatically prohibited, the Treaty would interfere excessively with ordinary domestic regulation. Later case law has therefore refined the scope of Article 34.

7. Mutual Recognition: The Cassis de Dijon Principle

7.1 The judgment

The principle of mutual recognition was developed in Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Case 120/78), commonly known as Cassis de Dijon.

The case concerned a French fruit liqueur that was lawfully marketed in France but could not be sold in Germany because it did not satisfy the German minimum alcohol-content requirement for the relevant category of spirits.

The Court held that, in the absence of harmonisation, obstacles to trade resulting from differences between national laws must generally be accepted only where they are necessary to satisfy legitimate public-interest requirements.

The judgment established a foundational proposition: goods lawfully produced and marketed in one Member State should, in principle, be admitted to the market of another Member State.

7.2 The principle of mutual recognition

Mutual recognition prevents national regulatory differences from automatically becoming barriers to trade.

If a product complies with the rules of the Member State in which it is lawfully marketed, another Member State cannot simply insist that the manufacturer redesign it to satisfy every aspect of its own national product legislation.

The principle is particularly important in areas where EU legislation has not established fully harmonised requirements.

It does not mean that the exporting Member State’s standards always prevail regardless of circumstances. A host Member State may impose restrictions where a legitimate public interest justifies them and the measure satisfies the applicable requirements of proportionality.

7.3 Mandatory requirements

In Cassis de Dijon, the Court recognised that certain national measures may be justified by mandatory requirements, even where they are not expressly listed in Article 36 TFEU.

The original examples included:

• The effectiveness of fiscal supervision.
• The protection of public health.
• The fairness of commercial transactions.
• The protection of consumers.

The Court’s subsequent case law has recognised additional public-interest objectives, including environmental protection and road safety.

Mandatory requirements are generally relevant to measures that apply without discrimination. Where a measure is directly discriminatory, the Member State will ordinarily need to rely on an applicable Treaty derogation rather than simply invoking a mandatory requirement.

The distinction is important because the Court examines the nature of the measure, the public objective invoked, and the conditions under which the restriction operates.

7.4 Regulation (EU) 2019/515

The practical operation of mutual recognition is supported by Regulation (EU) 2019/515 on the mutual recognition of goods lawfully marketed in another Member State.

The Regulation establishes procedures for economic operators and national authorities where a Member State intends to restrict or deny market access to goods lawfully marketed elsewhere.

It includes a voluntary mutual recognition declaration, procedural requirements for national assessments, and cooperation mechanisms between authorities.

The Regulation does not create an unconditional right to market every product in every Member State. It provides a framework for applying the principle consistently and transparently, while allowing restrictions justified under EU law.

8. The Keck Judgment and Selling Arrangements

8.1 The problem of excessive breadth

The broad Dassonville formula raised a difficult question: could Article 34 apply to almost every national rule affecting the commercial environment in which goods were sold?

Rules concerning shop opening hours, advertising, resale prices, and retail practices might influence sales without regulating the characteristics of products or discriminating against imports.

In Keck and Mithouard (Joined Cases C-267/91 and C-268/91), the Court sought to clarify the scope of Article 34.

The case concerned French legislation prohibiting resale at a loss. The Court distinguished product requirements from certain selling arrangements.

8.2 The two conditions

According to the Keck judgment, national provisions restricting or prohibiting certain selling arrangements do not fall within Article 34 where two conditions are satisfied:

First, the provisions must apply to all relevant traders operating within the national territory.

Second, they must affect the marketing of domestic products and products from other Member States in the same manner, both in law and in fact.

Both conditions must be satisfied.

A national rule may appear neutral in its wording but still disadvantage imported goods in practice. In that situation, the second condition may not be met.

8.3 Product requirements versus selling arrangements

Product requirements regulate the goods themselves. Selling arrangements concern the circumstances and methods under which goods are marketed.

Examples of selling arrangements may include:

• Restrictions on particular forms of retail sale.
• Certain rules governing shop opening hours.
• General rules concerning the organisation of retail businesses.
• Non-discriminatory restrictions on advertising or promotional methods.

The distinction is not always straightforward. A rule presented as a selling arrangement may substantially affect market access for imported products, particularly where foreign manufacturers depend on a particular marketing method to enter the national market.

The Court has therefore continued to examine the practical effects of national measures rather than treating the Keck classification as an automatic exemption.

8.4 Continuing significance of Keck

Keck remains an important part of the law, but it should not be understood as excluding all national rules concerning commercial activity from Article 34.

The Court has subsequently examined whether particular restrictions impede market access, including restrictions on the use of products.

In Commission v Italy (Case C-110/05), concerning restrictions on the use of trailers designed for motorcycles, the Court considered that national measures restricting the use of a product may constitute measures having equivalent effect where they hinder access to the market.

The case demonstrates that Article 34 may apply even where a national rule does not regulate product composition or the conditions of sale. A restriction on use can reduce demand so substantially that the product is effectively prevented from entering the market.

9. Restrictions on Use and the Market-Access Approach

The development of the market-access approach reflects the recognition that national regulation can obstruct trade in ways that do not fit neatly into the traditional categories of product requirements and selling arrangements.

In Commission v Italy (Case C-110/05), the Court examined a prohibition on the use of motorcycles with trailers. Although the measure did not formally prohibit the sale of the products, it made them significantly less attractive to consumers in the Italian market.

The Court held that a measure may constitute an obstacle to trade where it prevents access to the market for goods originating in other Member States.

A similar approach was developed in Mickelsson and Roos (Case C-142/05), which concerned national restrictions on the use of personal watercraft. The Court considered that restrictions on the places where a product could be used might hinder market access if they prevented consumers from using the product for its intended purpose or substantially restricted its use.

The relevant questions include whether the restriction:

• Prevents the product from being used for its intended purpose.
• Significantly limits the opportunities for consumers to use it.
• Reduces consumer demand to a level that obstructs market access.
• Pursues a legitimate public objective.
• Is proportionate to the objective pursued.

This approach is particularly important for products whose commercial value depends on their practical use. A product may be lawfully manufactured and marketed but become commercially unviable if national law prevents consumers from using it.

10. Export Restrictions Under Article 35 TFEU

Article 35 TFEU prohibits quantitative restrictions on exports and measures having equivalent effect between Member States.

Although Articles 34 and 35 use parallel language, their practical interpretation is not entirely identical.

Article 34 concerns restrictions on imports, while Article 35 addresses restrictions imposed by the exporting Member State on goods leaving its territory.

In Groenveld (Case 15/79), the Court adopted an approach under which Article 35 principally addresses national measures whose specific object or effect is to restrict patterns of export trade and thereby create a difference in treatment between domestic trade and export trade, giving a particular advantage to domestic production or the domestic market.

The Court’s later case law has developed the assessment, and the provision should not be treated as covering every national measure that incidentally affects exports.

In Gysbrechts and Santurel Inter (Case C-205/07), the Court examined a Belgian rule prohibiting a supplier from requesting payment from consumers before the expiry of the withdrawal period in distance-selling transactions. Although the rule applied generally, it could have a more significant impact on traders selling to consumers in other Member States. The Court considered its effects on export trade and assessed whether the restriction could be justified.

The case illustrates that apparently neutral national rules may create particular obstacles for cross-border commercial activity.

Article 35 must also be read alongside Article 36 and the general principles of EU law. A restriction on exports may be permissible where it pursues a legitimate objective and satisfies the applicable requirements of proportionality.

11. Article 36 TFEU: Justifications for Restrictions

11.1 The permitted grounds

Article 36 TFEU allows Member States to justify certain prohibitions or restrictions on imports, exports, or goods in transit on specified grounds.

These include:

• Public morality.
• Public policy.
• Public security.
• The protection of the health and life of humans, animals, or plants.
• The protection of national treasures possessing artistic, historic, or archaeological value.
• The protection of industrial and commercial property.

These grounds are exceptions to the free movement rules and are interpreted strictly by the Court of Justice.

A Member State cannot rely on Article 36 merely by invoking a public interest in general terms. It must demonstrate that the measure genuinely pursues an authorised objective and satisfies the applicable legal conditions.

11.2 Protection of public health

Public health is one of the most frequently invoked justifications.

A Member State may restrict the marketing of goods where credible evidence demonstrates that they create a genuine risk to human, animal, or plant health.

However, the restriction must be appropriate and necessary. A complete prohibition may be disproportionate if less restrictive measures, such as labelling, warnings, traceability requirements, or targeted inspections, could adequately address the risk.

Scientific uncertainty does not necessarily prevent a Member State from taking protective action. The precautionary principle may be relevant where scientific evidence is incomplete but a potentially serious risk exists. Nevertheless, precaution cannot serve as a substitute for a reasoned assessment of the available evidence.

11.3 Public security and public policy

Public security and public policy may justify restrictions in exceptional circumstances.

These concepts must be interpreted narrowly. A Member State cannot use them as general grounds for protecting domestic industries from foreign competition.

The measure must respond to a genuine public concern and must not operate as disguised economic protectionism.

11.4 Industrial and commercial property

Article 36 also recognises the protection of industrial and commercial property.

Intellectual property rights, including patents, trade marks, and copyright, may justify certain restrictions on the movement of goods. However, their exercise is subject to important EU-law limitations.

The Court has developed the distinction between the existence of an intellectual property right and its exercise. In Centrafarm v Sterling Drug (Case 15/74), it examined the relationship between national intellectual property protection and the free movement of goods.

The principle of exhaustion is particularly important. Once a protected product has been placed on the market in the European Economic Area by the right holder or with its consent, the right holder will generally be unable to rely on the relevant intellectual property right to prevent further commercialisation of that product within the EEA, subject to applicable rules and exceptions.

This doctrine prevents intellectual property rights from being used simply to divide the internal market into separate national territories.

12. Mandatory Requirements and Overriding Public Interests

Article 36 does not contain every possible justification for a national measure affecting trade.

The Court of Justice developed the doctrine of mandatory requirements in Cassis de Dijon. This allows certain non-discriminatory national measures to be justified by overriding reasons in the public interest.

Recognised interests have included consumer protection, environmental protection, fairness of commercial transactions, the effectiveness of fiscal supervision, and public health.

The distinction between Article 36 derogations and mandatory requirements is important.

Article 36 contains an express Treaty list and can apply to measures that discriminate against imported goods, subject to its strict conditions.

Mandatory requirements were developed through case law and generally justify measures that apply without discrimination. They do not provide a general defence for directly discriminatory restrictions.

The Member State must also demonstrate that the measure is proportionate. A legitimate objective does not automatically justify every regulatory method chosen to achieve it.

13. Proportionality and the Assessment of National Restrictions

Proportionality is central to the legal assessment of national measures affecting the free movement of goods.

A measure must be suitable for achieving its stated objective and must not go beyond what is necessary to achieve it.

The analysis commonly involves three connected questions.

First, is the measure capable of achieving the public objective? A regulation that has no meaningful connection to the asserted risk cannot be justified simply because its stated purpose is legitimate.

Second, is the measure necessary? The Member State must consider whether less restrictive alternatives could achieve the same level of protection.

Third, does the measure impose an excessive burden in relation to the objective pursued? The balance between the public interest and the restriction on trade must be legally defensible.

For example, a Member State may seek to protect consumers from misleading product information. A requirement for accurate and comprehensible labelling may be justified. However, requiring a manufacturer to replace all existing packaging solely because the wording differs from a national preference may be disproportionate where an additional label would provide the necessary information.

The assessment is context-dependent. The Court considers the nature of the risk, the evidence available, the degree of protection sought, and the practical effects of the measure.

The burden of establishing a justification generally rests on the Member State relying on it.

14. Harmonisation and the Relationship With National Rules

The application of Articles 34–36 depends partly on whether the relevant product sector has been harmonised by EU legislation.

Where EU legislation establishes common requirements, national authorities must apply that legislation rather than independently imposing incompatible national standards.

The precise effect of harmonisation depends on the relevant measure. Some EU legislation exhaustively regulates particular product requirements, leaving limited room for additional national rules. Other legislation establishes minimum standards or permits national measures in specified circumstances.

Where harmonisation is complete, the question is generally whether the national measure complies with the harmonising legislation. The Member State cannot ordinarily invoke Treaty derogations to depart from a fully harmonised framework unless the EU measure itself permits such action or the applicable Treaty rules provide otherwise.

Where harmonisation is incomplete or absent, Articles 34–36 remain central to the assessment.

This relationship explains why the free movement of goods is supported by both negative and positive integration.

Negative integration removes national barriers through Treaty prohibitions and judicial review. Positive integration creates common standards through EU legislation, reducing the need for separate national regulatory systems.

15. Enforcement and Remedies

The free movement of goods is enforced through several legal mechanisms.

15.1 Proceedings before national courts

Individuals and businesses may invoke directly effective Treaty provisions before national courts.

Articles 30, 34, and 35 TFEU may provide grounds for challenging national measures that restrict cross-border trade, subject to the requirements governing their application.

National courts must ensure that applicable EU law is given effect. Where a national provision conflicts with directly effective EU law, the national court must provide the protection required by the principle of primacy.

A business may therefore challenge an unlawful import restriction, seek repayment of an incompatible charge, or request an appropriate remedy under national procedural law.

The availability and form of remedies depend on the nature of the claim and the applicable EU and national rules.

15.2 Preliminary references

National courts may refer questions concerning the interpretation or validity of EU law to the Court of Justice under Article 267 TFEU.

A dispute concerning the compatibility of a national product requirement with Article 34 may therefore lead to a preliminary reference.

The Court of Justice interprets the relevant EU provisions, while the national court applies that interpretation to the dispute before it.

This procedure has been essential to the development of the free movement of goods because many foundational judgments arose from disputes initially brought before national courts.

15.3 Infringement proceedings

The European Commission may initiate infringement proceedings under Article 258 TFEU where it considers that a Member State has failed to fulfil an obligation under EU law.

Such proceedings may concern national legislation, administrative practices, or failures to remove restrictions incompatible with the free movement of goods.

If the Member State does not comply with a judgment establishing an infringement, Article 260 TFEU provides for further enforcement mechanisms, including possible financial sanctions under the conditions laid down in that provision.

15.4 Mutual recognition and administrative cooperation

Regulation (EU) 2019/515 provides procedural mechanisms for the application of mutual recognition and cooperation between national authorities.

The SOLVIT network also assists individuals and businesses facing problems caused by the incorrect application of internal market rules by public authorities. It is an administrative problem-solving mechanism rather than a substitute for judicial proceedings.

These mechanisms reflect the importance of preventing trade barriers before they develop into formal litigation.

16. Market Surveillance and Product Safety

Free movement does not mean that products may circulate without regulatory supervision.

Member States retain responsibilities for ensuring that goods placed on their markets comply with applicable EU legislation. This includes product safety, technical requirements, environmental standards, and consumer protection.

Regulation (EU) 2019/1020 on market surveillance and compliance of products establishes a framework for market surveillance and controls on products entering the Union market.

National market surveillance authorities may investigate products, require corrective measures, restrict their availability, or order withdrawal or recall where the relevant legal conditions are satisfied.

Customs authorities also play a role in controlling goods entering the EU from third countries. Their work may involve identifying products that present health or safety risks or that fail to comply with applicable import requirements.

The challenge is to reconcile effective enforcement with the prevention of unjustified barriers. Product safety controls must be applied consistently and must not become a pretext for excluding lawful goods from other Member States.

17. Practical Application: Assessing a National Measure

The legal analysis of a measure affecting the free movement of goods should follow a structured approach.

First, identify the goods and the cross-border element. The Treaty provisions generally concern goods moving between Member States. The concept of goods is broad and includes products capable of being valued in money and forming the subject of commercial transactions.

Second, identify the nature of the national measure. Is it a customs duty, a charge having equivalent effect, a quantitative restriction, a product requirement, a selling arrangement, an export restriction, or an internal tax?

Third, determine the relevant Treaty provision. Article 30 concerns border charges; Articles 34 and 35 address import and export restrictions; Article 110 concerns internal taxation; Article 37 concerns state commercial monopolies.

Fourth, examine whether EU harmonisation legislation applies. If the product sector is governed by harmonised EU requirements, the relevant legislation may determine the permissible national regulatory approach.

Fifth, consider mutual recognition. In a non-harmonised field, determine whether the product is lawfully marketed in another Member State and whether the host state has a legally sufficient justification for restricting it.

Sixth, assess any justification. The Member State must identify a legitimate Treaty derogation or, where applicable, a recognised mandatory requirement.

Finally, examine proportionality. The measure must be suitable and necessary and must not impose a restriction exceeding what is required to achieve the legitimate objective.

This method allows the legal issue to be analysed according to the actual nature of the measure rather than relying on the broad assumption that every national regulation affecting trade is unlawful.

18. Key Takeaways

• The free movement of goods is governed principally by Articles 28–37 TFEU.
• The EU customs union removes customs duties between Member States and establishes a common external customs tariff.
• Article 30 TFEU prohibits customs duties and charges having equivalent effect on imports and exports between Member States.
• Article 34 TFEU prohibits quantitative restrictions on imports and measures having equivalent effect.
• Article 35 TFEU addresses quantitative restrictions and equivalent measures affecting exports.
• The Dassonville judgment established a broad interpretation of measures having equivalent effect.
• The Cassis de Dijon judgment established mutual recognition and developed the doctrine of mandatory requirements.
• The Keck judgment distinguished certain non-discriminatory selling arrangements from restrictions caught by Article 34.
• Restrictions on the use of goods may also obstruct market access and fall within Article 34.
• Article 36 TFEU permits specified public-interest derogations, but they are interpreted strictly and remain subject to proportionality.
• Harmonisation legislation may replace or modify the application of national regulatory rules in particular product sectors.
• National courts, the CJEU, the European Commission, and administrative cooperation mechanisms all contribute to enforcement.

19. Frequently Asked Questions

1. What is the free movement of goods under EU law?

It is the principle that goods should be able to circulate between Member States without customs duties, quantitative restrictions, or unjustified measures having equivalent effect. It is one of the four fundamental freedoms of the Single Market.

2. What is the difference between the customs union and the Single Market?

The customs union eliminates internal customs duties and establishes a common external customs tariff. The Single Market goes further by addressing regulatory and administrative barriers affecting the movement of goods, persons, services, and capital.

3. What is a charge having equivalent effect to a customs duty?

It is a pecuniary charge imposed unilaterally on goods because they cross a border between Member States, regardless of its name, amount, or method of collection. Article 30 TFEU generally prohibits such charges.

4. What constitutes a quantitative restriction?

A quantitative restriction is a measure that limits the quantity or value of goods that may be imported or exported. It may take the form of a complete prohibition, an import or export quota, or a licensing system that restricts the volume of trade.

5. What are measures having equivalent effect to quantitative restrictions?

These are national measures that can hinder cross-border trade even though they do not impose a formal quota or prohibition. They may include product requirements, technical regulations, administrative procedures, and certain restrictions on marketing or use.

6. What is the Dassonville formula?

The formula comes from Case 8/74, Dassonville. It establishes that trading rules capable of hindering intra-Union trade directly or indirectly, actually or potentially, may constitute measures having equivalent effect to quantitative restrictions.

7. What does mutual recognition mean?

It means that, in areas not fully harmonised by EU legislation, goods lawfully marketed in one Member State should generally be permitted access to the market of another Member State. Restrictions remain possible where justified under EU law.

8. What is the significance of the Cassis de Dijon judgment?

The judgment established mutual recognition and recognised that national measures applying equally to domestic and imported products may nevertheless obstruct trade. It also developed the doctrine of mandatory requirements as a possible justification for certain non-discriminatory restrictions.

9. What did the Keck judgment establish?

The Court held that certain national rules governing selling arrangements fall outside Article 34 where they apply to all relevant traders and affect domestic and imported products in the same manner, both in law and in fact.

10. Can a Member State restrict imports to protect public health?

Yes, where the restriction genuinely pursues the protection of human, animal, or plant health and satisfies the applicable EU-law requirements. The measure must be proportionate and cannot constitute arbitrary discrimination or a disguised restriction on trade.

11. Are products imported from outside the EU covered by free movement rules?

Yes, where they have been released for free circulation in a Member State under the applicable customs rules. Article 28(2) TFEU extends the relevant free movement provisions to qualifying third-country goods in free circulation.

12. What is the role of the Court of Justice in the free movement of goods?

The Court interprets the Treaty provisions, defines the scope of prohibited restrictions, assesses possible justifications, and ensures consistent application of EU law. Its case law has shaped the modern understanding of mutual recognition, market access, and proportionality.

20. Conclusion

The free movement of goods is a fundamental legal mechanism through which the European Union has transformed a collection of national markets into an integrated economic area. Its foundations lie in the customs union and the prohibition of customs duties, but its practical significance extends much further. It addresses regulatory barriers that can restrict trade even when no financial charge or formal quota exists.

The Court of Justice has been essential in developing this framework. Dassonville established a broad understanding of equivalent measures; Cassis de Dijon introduced mutual recognition and mandatory requirements; and Keck refined the treatment of certain selling arrangements. Later judgments extended the analysis to restrictions on product use and market access.

The resulting system balances two important objectives. It prevents Member States from using national regulation to fragment the internal market, while preserving their ability to protect legitimate public interests. That balance is maintained through Treaty derogations, judicial interpretation, harmonisation legislation, and proportionality review.

The free movement of goods is therefore not simply a rule against tariffs. It is a constitutional framework governing the relationship between national regulatory authority and the economic freedoms of the Union. Its continued effectiveness depends on common rules, mutual trust, administrative cooperation, and the consistent enforcement of EU law.

21. Primary Legal Sources and Further Reading

Treaty provisions

• Article 26 TFEU – The Internal Market
• Article 28 TFEU – The Customs Union
• Article 30 TFEU – Customs Duties and Charges Having Equivalent Effect
• Article 34 TFEU – Quantitative Restrictions on Imports
• Article 35 TFEU – Quantitative Restrictions on Exports
• Article 36 TFEU – Derogations and Public-Interest Justifications
• Article 37 TFEU – State Commercial Monopolies
• Article 110 TFEU – Internal Taxation

EU legislation

• Regulation (EU) No 952/2013 – Union Customs Code
• Regulation (EU) 2019/515 – Mutual Recognition of Goods Lawfully Marketed in Another Member State
• Regulation (EU) 2019/1020 – Market Surveillance and Compliance of Products

Court of Justice case law

• Case 24/68, Commission v Italy – Charges Having Equivalent Effect
• Case 2/73, Geddo v Ente Nazionale Risi – Quantitative Restrictions
• Case 8/74, Dassonville – Measures Having Equivalent Effect
• Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon)
• Joined Cases C-267/91 and C-268/91, Keck and Mithouard – Selling Arrangements
• Case C-110/05, Commission v Italy – Restrictions on Use and Market Access
• Case C-142/05, Mickelsson and Roos – Restrictions on Use of Goods
• Case C-205/07, Gysbrechts and Santurel Inter – Export Restrictions
• Case 15/74, Centrafarm v Sterling Drug – Intellectual Property and Free Movement

Institutional resources

• European Commission – Free Movement of Goods
• European Commission – Guide on Articles 34–36 TFEU
• European Commission – Union Customs Code Legislation
• European Commission – EU Customs Tariff (TARIC)
• European Parliament – Free Movement of Goods