Free Movement of Goods - Justifying Restrictions under the Derogations listed in Art. 36 TFEU and the Mandatory Requirements

Abstract: Art. 36 TFEU is an exception clause which provides that quantitative restrictions or measures having equivalent effect to quantitative restrictions falling under Art. 34 and 35 TFEU may be justified under certain circumstances. If a national measure can be considered liable to hindering the trade between Member States, the national measure can be justified by one of the derogations listed in Art. 36. The Court has interpreted Art. 36 TFEU strictly. Discriminatory measures will be carefully scrutinized to make sure that the defense is guaranteed. The list in Art. 36 TFEU is exhaustive and therefore, the Court developed an open-ended list of so-called mandatory requirements in Cassis de Dijon. ‘Mandatory requirements’ or ‘public interest requirements’ can only be raised if the measure is considered to be indistinctly applicable a measure having equivalent effect to quantitative restrictions. The list of mandatory requirements is wider in scope than the derogations listed in Art. 36 TFEU; (a) indistinctly applicable or indirectly discriminatory measures should be considered to fall under Cassis de Dijon and (b) distinctly applicable or directly discriminatory measures should be considered to fall under Art. 36 TFEU. These exceptions have to be shown by the Member State that the objectives of the rule are necessary and achievable. The relationship between the two sets of justifications is discussed in this thesis.