State Monopolies and the Free Movement of Goods in EU Law: Getting Beyond Obscure Clarity

Graham Butler*

*Corresponding author for this work

Research output: Contribution to journalJournal articleResearchpeer-review

Abstract

The special provision relating to state monopolies of a commercial character within the EU’s internal market is nestled in the Treaties as the final provision regarding the free movement of goods. This special provision of Article 37 of the Treaty on the Functioning of the European Union (TFEU) is often overlooked, given it is seen to be of lesser significance than the general provisions on goods concerning quantitative restrictions and measures having equivalent effect contained in Articles 34–36 TFEU. Whilst the case law on state monopolies in respect of goods is elaborate, it is still far from clear how state monopolies within the meaning of Article 37 TFEU are to be handled, as evident from the case law of the Court of Justice. The article analyses three arising issues. Firstly, it investigates the boundary between the special provision of Article 37 TFEU and the general provisions of Articles 34–36 TFEU; secondly, it critiques the public interest aim that was once read into Article 37 TFEU by the Court of Justice; and thirdly, it questions the discrimination reading of Article 37 TFEU, rather than a more elaborate restrictions reading. Conclusively, the article offers grounds for why the special provision of Article 37 TFEU ought to be repealed, which in turn, would provide for a more concerted and consistent approach by subjecting state monopolies to the general free movement of goods provisions of the EU Treaties.
Original languageEnglish
JournalLegal Issues of Economic Integration
Volume48
Issue number3
Pages (from-to)285-308
Number of pages24
ISSN1566-6573
DOIs
Publication statusPublished - Sept 2021
Externally publishedYes

Keywords

  • European Union law
  • Free movement of goods
  • Law of the internal market
  • State monopolies
  • State-owned enterprises

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