Justifying Restrictions on the Free Movement of Goods: The Relationship between the Justifications listed in Article 36 TFEU and the Mandatory Requirements

Abstract: The European Court of Justice has established many fundamental principles with its case law, but one of the most important was created in the Cassis de Dijon case, where an open-ended list of mandatory requirements was first introduced, opening up new possibilities for Member States to justify measures that hinder the free movement of goods. One question has however not been answered, and that is the question of the relationship between the mandatory requirements and the exhaustive list over derogations that is provided for in article 36 TFEU. The conditions for applying those two different sources of derogations differ, depending on whether the disputed measure is distinctly or indistinctly applicable. The case law of the Court has been somewhat confusing on the matter and therefore commentators and even Advocates Generals have been calling for a clarification from the Court. A few different theories have been put forward by scholars in order to explain the mandatory requirements doctrine. Questions have mainly arisen on whether the Court wants to keep the distinction between the derogations in article 36 and the mandatory requirements, or if it is in fact trying to slowly erase the dividing line with its constantly evolving case law? One thing is for sure, and that is that the European Court of Justice must act soon in order to provide for some needed legal certainty on the matter.