16 Colum. J. Eur. L. 191 (2010)
Mattias Derlin & Johan Lindholm, Doctors of Law and Senior Lecturers in Law at Umea University, Sweden
In June 2009 the European Court of Justice (E.C.J) decided the Mickelsson case (C-142/05). Mickelsson concerns the application of the (in)famous Article 28 E.C. prohibiting practical obstacles to the free movement of goods within the European Union. The meaning of Article 28 is notoriously vague and has given rise to extensive case law. Mickelsson brings attention to a little discussed dimension of Article 28 E. C.: the fact that rules on use (i.e. national measures regulating how, when, and by whom goods can be used) can constitute practical obstacles to trade (so called MEQRs-measures having equivalent effect to quantitative restrictions). Rules on use do not fit the conventional concepts and principles established in the case law of the E.C.J.
In this Article we examine the application of Article 28 on rules on use, but we also discuss the implications of this development for the free movement of goods in general. We argue that the recent decisions handed down by the E.C.J. have three distinct advantages over previous case law on MEQRs. Firstly, the Court of Justice has approached the concept of MEQRs broadly, thus managing to accommodate 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 the 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 existing case law without discarding workable elements established previously.