The Legacy of Advocate General Jacobs at the European Court of Justice
Edited by Philip Moser and Katrine Sawyer
Chapter 6: Free Movement of Goods and Services
6. Free movement of goods and services Catherine Barnard1 INTRODUCTION I feel honoured to be asked to participate in this collection. Francis Jacobs’s Opinions have deepened my understanding of the debates surrounding the meaning and implications of the internal market. He has helped me frame my thinking and writing on the subject, and I am deeply grateful. Given the huge influence he has had on my thoughts, it is difficult to be critical of his contribution and so my aim in this chapter is to outline the areas in which Francis has made the most significant contribution to the jurisprudence on the internal market, and to focus on two particular areas where problems remain. I will begin by considering his approach to establishing breach of the treaty looking first at the free movement of goods. FREE MOVEMENT OF GOODS From Keck to Leclerc-Siplec The Keck2 case law was greeted with relief and criticism in equal measure. As is now well known, in Keck the Court drew a distinction between ‘product requirements’ and ‘certain selling arrangements’. In respect of ‘product requirements’, the Court confirmed that the principles in Cassis continued to apply3 and so any such national measures breached Article 28 unless they could be justified by mandatory requirements and the steps taken were proportionate. In respect of ‘certain selling arrangements’, the Court said in paragraph 16 that: Fellow in Law, Trinity College, University of Cambridge. Joined Cases C-267 & 268/91 Keck and Mithouard  ECR I-6097. The language of ‘product requirements’...
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