Free Movement of Goods and Their Use -- What Is the Use of It?

Journal Movement of Goods and Their Use - What Is the Use of It? What Is the W. Gormley - 2011 Article 1 Free Laurence Copyright c 2011 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Free Movement of Goods and Their Use – What Is the Use of It? Laurence W. Gormley Shortly before the disappearance of the European Community, the European Court of Justice (”ECJ”) handed down three judgments on the free movement of goods relating to the use to which goods are put. They are remarkable because they put an end to a serious controversy about the scope of what is now article 34 of the Treaty on the Functioning of the European Union (”TFEU”) (article 28 of the Treaty Establishing the European Community (”EC Treaty”)), which saw a considerable divergence in approach between the Advocates General concerned in these cases. The judgments also surely herald an end to attempts to expand the ambit of the now notorious judgment in Criminal Proceedings against Keck & Mithouard. These cases and their wider implications for the future scope of article 34 TFEU (article 28 EC Treaty) are the subject of this Article. The Article first examines and contrasts the approach of the Advocates General in each case chronologically and then the judgments in the order handed down, before turning to draw conclusions for the state of the law relating to the future application of the judgment in Keck. FREE MOVEMENT OF GOODS AND THEIR USE— WHAT IS THE USE OF IT? Laurence W. Gormley* INTRODUCTION Gordon Slynn, Lord Slynn of Hadley, was an outstanding Advocate General and then judge at the Court of Justice of the European Communities (as it then was),1 more usually referred to (if inaccurately) as the European Court of Justice (“ECJ”), and was later a distinguished member of the Judicial Committee of the House of Lords. His passing has rightly been widely lamented in legal and other circles,2 and it is with fond affection that I * B.A. 1975, M.A. 1979, Oxford University; M.Sc. 1976 London University (LSE); Barrister, Middle Temple, 1978; LL.D. Utrecht University, 1985; Professor of European Law & Jean Monnet Professor, University of Groningen (The Netherlands), Jean Monnet Centre of Excellence; Professor at the College of Europe, Bruges (Belgium). 1. As a result of the changes made by the Treaty of Lisbon, which entered into force on December 1, 2009, the European Community has now disappeared, various of its provisions being incorporated into the Treaty on the Functioning of the European Union. See generally Treaty of Lisbon, Dec. 1 3, 2007 , 2007 O.J. C 306/1, corrigenda 2008 O.J. C 111/56 & 2009 O.J. C 290/1 (entered into force Dec. 1, 2009) [hereinafter Reform Treaty]; Consolidated Version of the Treaty on the Functioning of the European Union, 2010 O.J. C 83/47 [hereinafter TFEU]. As to the consolidated versions of the Treaty on European Union [hereafter TEU], with the accompanying Protocols (some of which are protocols to the TEU and TFEU, and some also to the Treaty establishing the European Atomic Energy Community (consolidated version 2010 O.J. C84/12, corrigenda 2010 O.J. C 181/1)), Annexes, and Declarations attached to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, 2010 O.J. C 83/13; see also Consolidated Version of the Treaty Establishing the European Community, 2006 O.J. C 321E/37 [hereinafter EC Treaty]. Since December 1, 2009, the Court of Justice of the European Communities is now known as the Court of Justice of the European Union (“ECJ”). Reform Treaty, supra, art. 1, 2009 O.J. C 306/01, at 16. 2. See, e.g., Laurence Gormley, Obituary: Gordon Slynn (1930-2009), 34 EUR. L. REV. 347, 347–48 (2009); Louis Blom-Coomper, Obituary: Lord Slynn of Hadley: Liberal Law Lord, Judge and Advocate General of the European Court of Justice, GUARDIAN (London), May 22, 2009, at 41; Lord Slynn of Hadley: a Lord of Appeal in Ordinary, TIMES (London), Apr. 9, 2009, at 67; Obituary of Lord Slynn of Hadley Law: Lord and Staunch Europhile who Dissented from the Decision to Extradite General Pinochet, DAILY TELEGRAPH (London), Apr. 8, 2009, at 37. remember his various visits to Groningen, many hilarious meals together, and his wise counsel and encouragement. The dedication of this special issue of this Journal to him justly pays further tribute to a great lawyer, judge, and tireless worker in national, European, and international law circles for the rule of law, respect for human rights and dignity, and liberation from all forms of oppression and injustice. TRIA JUNCTA IN UNO Shortly before the disappearance of the European Community,3 the ECJ handed down three judgments on the free movement of goods relating to the use to which goods are put. They are remarkable because they put an end to a serious controversy about the scope of what is now article 34 of the Treaty on the Functioning of the European Union (...truncated)