Free Movement of Goods and Rules on Use: a Step towards a Workable Doctrine of MEQR

Two decisions passed down by the ECJ in 2009, Commission v Italy and Mickelsson, draw attention to a little discussed dimension of Article 28 EC: the fact that national measures regulating how, when, and by whom goods can be used can constitute measures having equivalent effect to quantitative restrictions. The paper argues that these decisions have three distinct advantages over previous case law on MEQRs. Firstly, the Court of Justice has approached the concept of MEQRs broadly, accommodating national measures that do not easily fit the traditional categories employed in relation to Article 28. Secondly, the Court’s approach is pragmatic and allows for a relatively simple identification of obvious breaches while providing a more nuanced approach based on market access for “hard cases.” Finally, the new approach improves upon the existing case law, without discarding workable elements established previously.