The end of 2012 will herald the twentieth anniversary of 'deadline 1992', the projected date for the completion of the EU's internal market. Since the entry into force of the Lisbon Treaty in 2009 references to '1992' have been deleted from the Treaties, and so it may be tempting to suppose, rather more than twenty years since the first contribution on the Free Movement of Goods to this section of the Quarterly,1 that this is old news. Isn't the law governing the internal market in general and the free movement of goods in particular now well settled?
The Surveys of the law of the free movement of goods carried in the Quarterly since 1989 have followed a largely consistent pattern. The Court's case law interpreting the nature and purpose of Article 28's legislative institutions. The readier the Court is to treat national measures as barriers to trade, the deeper the incursion of EC law into national regulatory autonomy. And vice versa. The Wider the scope allowed to the possibility to justify barriers to trade, the more room for manoeuvre is handed back to national regulatory autonomy—and the more weight is placed on the process of legislative harmonization or, increasingly, other forms of policy coordination at EC level as the way to advance integration. And vice versa. All these trends are in view in the period covered by this survey. The complex institutional rhythms reveal that the creation of the internal market was not a short-term project that was completed in 1992, nor even an enterprise that gently begged to have a few loose ends tidied up before being triumphantly pronounced historical fact. In reality the internal market, as an exercise in creating a unified economic space underpinned by a constitutionalized system of supra-State legal rules in a politically fragmented but interdependent environment, is one manifestation of the extraordinary exercise in multi-level governance which is evolving in Europe. Systems of this complexity do not stop fluctuating; 'free' markets are politically contested.
Since the expiry of the deadline for the completion of the internal market at the end of 1992, the Commission has shifted its focus away from piloting an intense rule-making burst through the Community legislative system. As part of its quest to establish reliable methods for managing the internal market, the Commission is now overtly concerned to improve the quality of those adopted laws, for example by securing simplification and consolidation, and it is intent on investigating more rigorously how a closer match may be made between the relevant laws on paper and their practical application on the ground.1 In short, the Commission is focusing its energies on ensuring that the legal framework which has been adopted is treated by commercial operators and consumers in the market as a viable and trustworthy basis for an integrated market. Accordingly much of the Commission's work since the last survey of the law relating to the free movement of goods has been at first sight relatively unglamorous. It largely concerns soft law initiatives and attempts to improve administrative co-ordination designed to underpin the practice of market management, both vertically (Commission/Member State) and horizontally (Member State/Member State). This forms the core of the strategy for the internal market covering the next five years, published on 24 November 1999.2 Nonetheless, even though these initiatives might not immediately strike the lawyer accustomed to a fountain of legislative activity as worthy of close inspection, it is clearly the case that the Commission regards its medium-term mission to stabilise the management of the internal market as best pursued by a gradual approach designed to improve practical compliance.