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The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.

The ability of supranational agents such as the European Commission and Court of Justice to influence policy outcomes in the European Union varies as a function of the control mechanisms established by member governments to limit supranational discretion. Examines three cases of market liberalization representing a range of control mechanisms, in the areas of external trade (negotiation of the Uruguay Round), competition policy (the De Havilland merger decision) and the free movement of goods within the Union (ECJ jurisprudence from Cassis de Dijon through Keck). Taken together, these three case studies suggest that the Commission and the Court have indeed been activist in their mission to establish a single European market, but also that their successes have been limited as a function of the control mechanisms established by member governments to control their discretion.

An examination is made of the emergence and institutionalization of a new policy domain for the European Community (EC): environmental protection – a domain that did not exist before the signing of the Single European Act (SEA) of 1985, when the Member States formally recognized the EC's legislative authority in the field, and the strengthening of these competences in 1992 by the Treaty of European Union and in 1997 by the Treaty of Amsterdam. Partly owing to lack of Treaty basis, and partly because of factors to be discussed in this chapter, the influence of the legal system on the development of the EC's policy has not been as pervasive as it has been for the main categories of law and policy established under the original Rome Treaty. The first section, ‘The Policy Domain’ provides a brief overview of the evolution of environmental protection as a supranational field of governance. The second focuses on the attempts of the European Court of Justice (ECJ) to manage the relationship between freedom of trade (free movement of goods) and the EC's environmental policies, showing that this case law served to legitimize the EC's competences in the field before the SEA. The third section assesses the Court's interactions with the EC legislator and the Member States from the perspective of delegation theory, examining both what happens when the ECJ acts as a trustee of the Treaty, and when it functions as an agent of the legislator, i.e. when it is asked to resolve disputes about the meaning of provisions contained in EC statutes; no evidence was found that the ECJ regularly defers to the interests of powerful Member States, rather, it has pursued the ‘Community's interest’, broadly conceived, even when engaging in routine statutory interpretation.

This chapter examines the definition of measures having equivalent effect. It shows how dynamic Community law is; on the one hand there are clear signs of continuity and consistency, on the other hand those of change, reassessment and new developments. The free movement of goods remains, as with developments in the other freedoms and in Union citizenship, a dynamic and far-reaching area of Community law. The free movement of goods — and in particular the definition of measures having equivalent effect — is a fitting subject for study in the light of the theme: Continuity and Change.

This chapter focuses on the possible boundaries of Article 49 EC Treaty, and attempts to delineate what is ‘outside’ more than on what is ‘inside’. Particular attention will be devoted to the ‘self-restraint’ and ‘legislative’ generations, where the parallels with the law on free movement of goods seem to provide for some contradictory results.

The EC Treaty is founded on the twin principles of free trade and undistorted competition. The former is guaranteed by the provisions on free movement of goods and services. The latter is protected by the competition rules of the Treaty laid down in Articles 81 to 89. As the intellectual property rights frequently clash with the principle of the free movement of goods and services, so too there is a tendency for them to enter into conflict with the competition rules of the Treaty. The principal rules that are of interest are Articles 81 and 82. The former prohibits, inter alia, agreements between undertakings that restrict competition. The latter prohibits undertakings that have exceptional market power from abusing their dominance. Intellectual property rights have a role to play in relation to both of these prohibitions.

In considering how localized consumer tastes have to comply with the requirements set by both regional and national production, we realize that the free movement of goods in the European Community may bring about certain issues regarding compatibility. The need to find a balance between what local consumers and producers are already familiar with and currently practise and what the market is capable of providing has long been a concern of various Community institutions. As such, the Court of Justice (ECJ) has already come up with principles to be applied within issues of internal market law. While such issues have been the subject of various debates, ‘local’ interest is grounded on consumer protection, particularly on market breadth value and proper product labeling. This chapter examines whether cultural diversity should give more attention to issues regarding the free movement of goods and consumer protection.

Article 30 recognizes the existence of a conflict between intellectual property rights and the free movement of goods. It resolves that conflict by giving priority to intellectual property rights. But it confers only a qualified priority on such rights. It does not grant Member States carte blanche to erect barriers to trade between Member States in the name of intellectual property. The restriction on trade must be ‘justified’ and it must not constitute ‘arbitrary discrimination’ or a ‘disguised restriction on trade between Member States’.

The greatest defect in the existence/exercise distinction is that it is too vague to be of much use by itself. It provides no guidance as to when the exercise of the right will fall foul of Articles 28 and 30. Those who criticize the European Court of Justice on this ground are perhaps being a little harsh. They are ascribing to the distinction ambitions which it never pretended to have. It was never meant to solve, by itself, all the problems that arise as a result of the conflict between intellectual property rights and the free movement of goods. In fact, it is doubtful whether it was meant to solve any specific problem.

The European Court of Justice has consistently held that, in the absence of harmonization by the Community institutions, it is for national law to determine the procedures and conditions governing the grant of intellectual property rights. On the face of it, that might appear to be nothing more than a harmless statement of the obvious. Clearly, if there is no Community legislation on a particular matter, the relevant rules must be sought in national law, subject of course to compliance with the Treaty rules on the free movement of goods and with the general principles of Community law, such as the principle of non-discrimination. In that respect, intellectual property is no different from any other area regulated by law, such as technical standards applied in the production of lawnmowers or rules on the composition of animal feeding-stuff.

It is clear from Article 30 that a balance must be struck between the principle of free movement and the protection of intellectual property rights. Since the mid-1960s the European Court of Justice has been in search of the correct balance. It has not always found the task easy. In order to determine what restrictions on free movement are ‘justified’ under Article 30, the Court has developed a number of tests. None of those tests has proved entirely satisfactory, mainly because of the extreme vagueness of some of the terms used in them. The Court's approach has fluctuated over the years and it has not always shown great fidelity to the various tests that it has elaborated. The overall impression one has is that the Court is still searching for wisdom in this difficult area.

This chapter considers whether environmental protection measures taken within an area that has not (yet) been regulated by the EU could restrict the free movement of goods within the Union. This only becomes relevant when an environmental measure is in some way product- or market-related and can be expected to affect the functioning of the internal market. Surprisingly many types of measures, as well as omissions, are deemed to have an effect on the internal market. While the Treaty provisions on the free movement of goods are what most frequently affects measures taken or contemplated by Member States in order to protect human health or the environment, such measures may in some cases also conflict with other Treaty rules. This chapter also briefly discusses another pertinent area—environmental taxes.

The authors give an overview over the relationship between general EU law and intellectual property law, in particular copyright law. They note that a first phase of development was characterised by a conflict between the fundamental freedoms and intellectual property. In a second phase, the CJEU started interpreting IP directives. Since 2009, the CJEU has taken a pro-active role, for example by creating a European concept of copyrightable works. The authors analyse the impact of the fundamental freedoms, of the principle of non-discrimination, of competition law and of constitutional law on intellectual property. They note with approval that the CJEU is increasingly called upon to balance intellectual property against competing values which are also protected under EU law.

The chapter on Treaty freedoms and EU energy markets covers the basic rules and cases on the free movement of goods and capital in the energy sector. The focus of the chapter is on the existing case law.

Chapter 2 first summarizes how European integration has set the stage for increased cross-border transactions. Next, it conceptualizes transnationalism, thereby distinguishing between macro-level transnationalism and individual-level transnationalism. Macro-level transnationalization, as captured by the KOF index of globalization (Dreher et al. 2008), is further distinguished into economic, social, and political dimensions. It is shown that there are considerable differences among European member states with respect to their level of transnationalization. Individual-level transnationalism is conceptualized as a tri-dimensional phenomenon, consisting of the dimensions of transnational background, transnational practices, and transnational human capital. The remainder of Chapter 2 presents the operationalization of individual transnationalism in Eurobarometer waves 65.1 and 67.1.

This chapter analyses the early phase of European law, in which territorially restricted intellectual property rights were mainly seen as obstacles to the fundamental freedoms. While the ECJ had to respect the existence of national intellectual property rights, it tried to restrict their exercise, inter alia by creating the doctrine of European exhaustion. If an uninitiated reader tried to understand the concept of patents and trade marks from the early ECJ judgments, he or she would get a rather distorted picture, since the court was slow to take the policies underlying intellectual property into account. Comparing the early years to a football match, the author finds that intellectual property was pushed into a defensive situation.