The first freedom contained in EU free movement law – goods – has given rise to some of the most seminal cases in EU law, featuring all of the UK Advocates General at the Court, as seen in many other chapters in this volume. Whilst Articles 28–30 TFEU cover customs union concerning the free movement of goods, which in the mainstream literature are called fiscal measures; and Articles 34–36 TFEU (‘the general provisions’) cover quantitative respects on imports and exports, and measures having equivalent effect, which are called non-fiscal or regulatory measures; there is also the final provision concerning goods contained in Article 37 TFEU (‘the special provision’) concerning state monopolies of a commercial character (state monopolies). This special provision has long suffered from relative obscurity, and is indeed a curious creature.

The general provisions concerning the free movement of goods (Articles 34–36 TFEU) can now be seen as largely settled case law, barring technical bits and pieces that remain to be resolved, especially as regards mutual recognition. Whilst it always remains possible for changes in the case law, to put simply for now, when dealing with Article 34 TFEU concerning quantitative restrictions on imports and measures having equivalent effect, the Court reads Article 34 TFEU as being a restrictions test, with its famous (or infamous) exclusion of ‘certain selling arrangements’ doctrine from Keck still in situ, as well as the Court’s market access doctrine, as elaborated in Commission v Italy (Trailers), playing a crucial role in ensuring that Article 34 TFEU is given true effect in the Member States.

By contrast, in relation to the similar provision on quantitative restrictions on exports and measures having equivalent effect, the Court reads Article 35 TFEU as being merely a discrimination test, and not one concerning broader restrictions. Article 36 TFEU acts as a potential basis for Member States to derogate, upon written (listed) grounds, from Articles 34–35 TFEU, subject to the general principles of EU law. The judgment of the Court in Cassis de Dijon created a further basis to derogate from Articles 34–35 TFEU through unwritten (unlisted) grounds, in what are called ‘mandatory requirements’, ‘rules of reason’, ‘imperative requirements’ or ‘overriding reasons in the public interest’.

Where then, was there to be a place for Article 37 TFEU, the special provision concerning the free movement of goods and state monopolies, within the jurisprudence of the Court? How were national measures concerning state monopolies, for which there was no shortage of at the time of the Union’s creation in the original six Member States, to be tested as regards their compatibility with the free movement provisions in what when then the EEC Treaty (now TFEU)? Were national measures to be scrutinised under the general provisions of Articles 34–36 TFEU, or under the special provision of Article 37 TFEU, or alternatively, both? Moreover, if national measures were to be only scrutinised under the special provision of Article 37 TFEU alone, was the test under Article 37 TFEU to be a mere discrimination test, in line with the exports provision of Article 35 TFEU, or what it to be a more comprehensive restrictions test, in line with the imports provision of Article 34 TFEU? The TFEU has never provided any answers to these questions. Thus, it has been up to the Court to adjudicate on such questions as matters came before it.

The earliest cases under Article 37 TFEU that were referred by national courts under the preliminary ruling procedure, regrettably, did not give many concrete answers to these questions, including in Manghera, the case at hand. However, as will be demonstrated, the Opinion of AG Warner that he delivered in 1976 offered remarkable foresight for where, in fact, the case law has de facto ended up in the modern era. Whilst there continues to be uncertainty about the relevance of Article 37 TFEU as concerning the free movement of goods for how national measures are to be tested against it, the Opinion of AG Warner offered an early insight into the problematic nature of Article 37 TFEU, and for why, the Court, whilst not taking up AG Warner’s obiter dictum comments in Manghera at the time, has in fact come around to his way of thinking about the free movement of goods provisions collectively. The Court has now realised that Article 37 TFEU is unworkable, and thus, is currently declining to adjudicate on it.