Protection of the Environment as a Mandatory Requirement: The Possibilities of the Member States of the European Union to Favor National Products

Abstract

Over the years, the legal instruments of the European Union have been changed to increasingly contemplate environmental protection. Also, the CJEU has paved the way for environmental considerations by recognising in its case law that environmental protection is capable of restricting the free movement of goods. However, the Treaty amendments have not gone hand-in-hand with the development of the case law, and there seems to be one special loophole. Traditionally, only the express derogations from the free movement of goods rules were able to justify distinctly applicable measures, as compared to the mandatory requirements that could justify only indistinctly applicable measures. That is why the Court seems to now be between a rock and a hard place when it comes to distinctly applicable measures that could be justified on the grounds of environmental protection. This paper scrutinises the most recent case law of the CJEU and analyses whether the Court has even implicitly justified distinctly applicable measures on the grounds of environmental protection. The main purpose of the paper is to set the scene to explain the possibilities of the Member States to protect the environment to the detriment of the free circulation of goods.