One of the chief goals of the EU is to achieve a single market where there will be free movement of merchandise within the member states. Free movement of goods will promote competition and result in price advantage and quality of the product to the EU consumers. There exist two obstacles to the free movement of products within the EU. This pertains to the interpretation of ECJ on the common provisions of technical restrictions under Article 28 under the EC Treaty.
The second barrier is the immunities to the general provisions of Article 29, Article 28 footed on Article 30 and the compulsory needs emanating from the decision in the Cassis de Dijon[1] by the ECJ. Article 28 deals with quantitative restrictions (QR), if a member state announces a complete ban or quotas, then they will infringe Article 28 of EU and this can be saved only by reference to the Article 30 derogation. Article 28 also deals with measures having an equivalent impact to quantitative restrictions (MEE) on merchandise which includes content[2], shape[3], labeling[4], composition, and identification that applies to both domestic and imported products. (Barnard 2007:53)Cassis de Dijon’s [5] verdict is a landmark one as it has offered the required legal mechanism to make sure that there exists a free trade in merchandise in the EU.
- It has facilitated the trading community to challenge any endeavor to limit their commercial freedom on the footing of national measure.
- Cassis case has made the ambit of Article 28 without limit as it restricts all national rules obstructing intra-EU trade which includes both marketing and product specification.
In GB-INNO –BM v Confederation du Commerce Luxembourgeois Asbl[6], it was held by ECJ that free movement of merchandise within the EU is the legitimate right of not only traders but also consumers who can travel freely to another member state and can shop such products for his use. (Barnard 2007:63)
In Dassonville’s [7] case, it was held all commercial regulations enacted by the Member States, which impede trade between two member’s states either directly or indirectly will be regarded as analogs to quantitative restrictions. (Cho 2003:72).
In Cassis de Dijon (1978)[8], it was affirmed by ECJ that the doctrine of reciprocal recognition of the national law and the privileges of consumers to benefit from the free movement of merchandise. The ECJ, in its ruling, has said that if merchandise fulfills the rules of one EC member state, then such regulations should be honored by another member state as functional equivalent. (Ginsberg 2007:122).
Under the Dassonville formula, there should be equal treatment of domestic and imported products. If there is prejudice between them, then the principle of Cassis de Dijon will not be applicable but the Dassonville formula will be applicable. Thus, the Cassis de Dijon formula is more concerned with indistinctly applicable rules and the Dassonville formula is concerned with distinctly applicable rules. This was corroborated in the case Commissioner v Ireland[9] and again affirmed in case Schutzverband Gegen Unwesen in der Wirtschaft v Weinvertriebs –GmbH[10]. (Kaczorowska 2008:537).
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The likelihood that Article 28 could be extended to indistinctly applicable rules was evident in Dassonville and the characterization of a MEQR in Para 5 did not demand a measure to be biased. Thus, the initiation that was taken in Dassonville and Directive 70/50 came to reality in the decisive Cassis de Dijon case. (Craig & Burca 2008:677).
The directive 70/50 is so crucial as Article 2 is dealing with discriminatory measures and Article is dealing with the marketing of merchandise which includes size, shape, presentation, composition, and identification that applies to both domestic and imported products and were any restrictive measures on imported products surpassed the effects fundamental to such regulations.(Craig & Burca 2008:677).
Thus, what started as an affirmation of States’ privileges was later translated into a legal verdict that demanded the State to substantiate the indistinctly applicable rules under the rule of rationale. (Craig & Burca 2008:679).
ECJ has inferred Article 30 strictly mainly to make sure biased restraints on the free movement of merchandise will not easily be substantiated. However, there exist hardships regarding the relationship between defenses to indistinctly applicable rules and discrimination. (Craig & Burca 2008:667).
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The association between the exceptions in Cassis and Article 30 has become further problematical by dividing the line between issues relating to indistinctly applicable rules and indirect discrimination. In Commission v Austria, it was contended that whether the rule should be considered as discriminatory or indirectly or indistinctly applicable, and it was held by ECJ that the Austrian rule was indistinctly applicable and hence safeguarding measures for the environment could constitute an objective excuse to the rule. (Craig & Burca 2008:704).
In its decisive verdict on Article 28 EC (Article 34 TFEU) in Dassonville[11], it was ruled by ECJ that all trading rules made by the Member States which hinder or hamper the movement of merchandise within the EU will be considered to be analogs to quantitative restrictions. However, in the same case, ECJ acknowledged that initiatives of analogs effect that are rational would be attuned with Article 28(Article 34 TFEU.
Thus, whenever, there is an issue of national importance like environment, ECJ has affirmed that there could be an objective exception to the discriminatory rule and in such cases, ECJ may apply indistinctly applicable rules.
List of References
Barnard, C. (2007) The Substantive Law of the EU. Oxford: Oxford University Press.
Cho, S. (2003) Free Markets and Social Regulations. London: Kluwer Law International.
Craig P. and Burca G. D. (2008) EU Law: Text, Cases, and Materials, Oxford: Oxford University Press.
Ginsberg, R.H. (2007) Demystifying the European Union. London: Rowman & Littlefield.
Kaczorowska, Alina. (2008) European Union Law. London: Taylor & Francis.