State Monopolies and the Free Movement of Goods in EEA Law: Ensuring Substantive Homogeneity at the EFTA Court

Graham Butler*, Marius Meling

*Corresponding author for this work

Research output: Contribution to journalJournal articleResearchpeer-review

Abstract

In the European Economic Area (EEA) Agreement, an international agreement that extends the EU’s internal market to three neighbouring states, art.11 EEA and art.16 EEA are the equivalent provisions to art.34 TFEU and art.37 TFEU that are applicable to EU Member States concerning the free movement of goods. In EU law, the Court of Justice of the European Union ( CJEU) has recently shied away from adjudicating on the basis of art.37 TFEU , the special provision concerning state monopolies of a commercial character concerning goods, and instead, assessed national measures through the general provision of art.34 TFEU . By contrast, in EEA law at the EFTA Court, that shift in adjudication has not yet occurred, with the EFTA Court continuing to interpret national measures on the special provision of art.16 EEA (the equivalent special provision of art.37 TFEU ), and not the general provision of art.11 EEA (the equivalent general provision of art.34 TFEU ). EEA law is supposed to be substantively and procedurally homogenous with EU law. Presently, there are legislative considerations being given to changes in some Member States to the rules concerning state monopolies, as well as litigation before national courts concerning compatibility with EU law. In light of this, and the diverging approaches between the CJEU in EU law and the EFTA Court in EEA law, this article explores the past, present, and future of state monopolies and the free movement of goods in EEA law, and offers some guiding solutions to resolve the arising issues.
Original languageEnglish
JournalInternational Trade Law and Regulation
Volume28
Issue number1
Pages (from-to)55-72
ISSN1357-3136
Publication statusPublished - Jan 2022
Externally publishedYes

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