Restrictions to the free movement of goods. The protection of the environment as a mandatory requirement in the ECJ case law

Abstract: Since the 'Danish bottles case', where the protection of the environment was recognized as a mandatory requirement that could derogate from the free movement of goods, the ECJ has taken over an interesting role to map the boundaries of its application. The rank of Community policy and the need of integration explicitly envisaged in the EC, have had a major influence in its judicial interpretation. Perhaps this is why the characteristics that depict the mandatory requirements' theory, elaborated in 'Cassis de Dijon' and further case law, have not been strictly applied in the case of environmental protection. The ECJ has been very flexible to favour its application in cases where the national measures were objectively distinctly applicable (against its own line of reasoning and the doctrine, that only uphold the mandatory requirements in the case of indistinctly applicable measures)&semic even it has served to support, though in a subtle way, measures that restricted exports, once again challenging the majority opinion that holds that breaches of art. 29 EC can be justified only by art. 30 EC. The ECJ has also taken a disputable weak position in the question regarding the assimilation of this mandatory requirement with that of protection of health and life of humans, animals or plants, included in art. 30 EC. It has not ruled out this possibility, nor has accepted it: it has simply obviated to give a clear indication. Finally the Court has, in other cases, avoided to analyze the test of proportionality, one of the fundamental requisites to uphold a derogation from a fundamental principle. It all indicates that the ECJ is willing to accord a different treatment to this mandatory requirement. The balance trade-environment is a difficult one not only in the Community legal system, but also in the GATT/WTO system: nonetheless, in the latter the commercial aspects still prevail over the environmental ones more than in the EC. The principle of integration, included in art. 6 EC, can explain that difference as well as the intentions of the Court. Some have argued that the ECJ wants to amend the EC via judicial interpretation, although it collides with its lack of legitimacy&semic others maintain that since the environmental protective measures must discriminate in order to be really effective, this derogation should be interpreted differently. However, the ECJ case law in this area is quite confusing, and is still soon to draw any clear conclusion of the Court's intentions.