Robert Schütze. European Union Law 2 ed. 2018. p. 534 scanned. All emboldenings are mine.

Why would the Court be strict on the express policy grounds mentioned in Article 36 and yet allow for implied – additional – grounds of justification at the same time?
      The explanation behind this apparent paradox is that Article 36 was originally designed against the backdrop of the international market model within which it was to apply to discriminatory national measures. But once Article 34 was seen – after Cassis – to cover non-discriminatory measures, the Court was caught in a dilemma: on the one hand, it wished to recognise that the expansion of the material scope of Article 34 had to trigger a – simultaneous – expansion of the potential grounds of justification; yet, on the other hand, that expansion could not take place within Article 36 because that might invite the Member States to use the new grounds also for discriminatory measures and thereby undermine the Court’s tough stance here. The way out of this dilemma was daring but ingenious: the Court simply deposited a second justificatory route but only for those measures that fell outside the international market model.

  1. What's "the international market model"? The author didn't define it.

  2. What were "those measures that fell outside the international market model"?

  3. What was the "second justificatory route"?

With the emergence of the federal model in Cassis, the Court thus began to exempt obstacles to the free movement of goods that were

necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.186

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  • I feel this needs a ton of additional context. – Jan Dec 11 '19 at 5:29

What's "the international market model"? The author didn't define it.

The international market model is described in an earlier book. The following is from a book review and, therefore, is only an overview of the various "market models".

From International to Federal Market: The Changing Structure of European Law

What are the different market types that shape the European Union's internal market? Schütze proposes three models that assist in explaining the transitions in the structure of the EU internal market. The international model demands that each state limits its external sovereignty, while retaining internal sovereignty over its national market. The federal model declares that within a "common market" states must lose a part of their internal sovereignty, and in accordance with the principle of "home state" control, goods are entitled to be sold freely on a "foreign" market in compliance with home state law. The national model proposes that the trade restrictions above a legislative or judicial Union standard should be removed.

What were "those measures that fell outside the international market model"?

Those measures that are in the federal and national market models.

What was the "second justificatory route"?

The "emergence of the federal model in Cassis". The idea that, if a product meets all requirements for sale in the "home state", then the "Express Grounds" in Article 36 must be limited to the extent necessary to allow the product to be "sold freely on a 'foreign' market". This satisfies Article 34 without unduly restricting Article 36.

[There are fine points of law. What I have written here appears to be consistent with the decision in Cassis and the description of the "international market model" given above, but I cannot be certain that I haven't missed some of the finer points.]

Article 34

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Article 36

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

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  • thanks. i removed the quotes to Art 34 and 36 to keep the post shorter. they can always be looked up. – Mark da Silva Dec 18 '19 at 7:38

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