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I. FREE MOVEMENT OF GOODS

Since the last survey published in the ICLQ the law governing the free movement of goods has continued to evolve incrementally, troubled little by the constitutional hysteria that has accompanied much of the recent existential debate about the EU. Periodically acclaimed as one of the Union’s manifest success stories—and so surely if the Union is to have a flag, better that it display a bottle of blackcurrant liqueur rather than 12 golden stars on a blue background—the internal market has nonetheless largely been taken for granted, a fait accompli. However, as is true of all markets, there is enduring scope for debate about the appropriate intensity of legal regulation. Accordingly the Commission was lately shrewd in its observation that the single market is ‘constantly evolving’ and that accordingly it will never be ‘finalised’. This depiction is amply supported by the abundant material that jostles for attention in surveying the last three years of activity. Trivial it may seem when compared with grand constitutional narratives, yet in fact refining—and, one hopes, improving—the law underpinning the EU’s internal market is precisely the unglamorous but necessary work that serves to legitimate the EU as an arena in which Member States can act in common more effectively than they can alone. This survey deals with developments in four areas: the definition of a barrier to trade in goods, the possibility to justify an identified trade barrier, the scope and content of the programme of harmonization of laws, and the broader terrain of ‘market management’. It therefore skates from the judicial contribution to the law governing the free movement of goods to the legislative role before reflecting more broadly on the extent to which making the internal market involves extra-legal initiatives—which, moreover, may escape the constitutional and/or material capacity of the EU to provide. It will also, where necessary (which is happily not often), mention the impact of the Treaty of Lisbon, should it enter into force.