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

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 Conclusively, the article offers grounds for why the special provision of Article 37 TFEU ought to be repealed, which in turn, would provide for a more concerted and consistent approach by subjecting state monopolies to the general free movement of goods provisions of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. State monopolies, Free movement of goods, State-owned enterprises, European Union law, Law of the internal market