What are the outer limits of Article 28 EU Essay Example

intra-Community trade, whether directly or indirectly, are considered measures equal to quantitative restrictions.

The scope of measures that fall under Article 288 includes those with only an indirect or potential effect on trade, making it a broad view. The absence of a certificate for whisky in free circulation was the main concern in the case, as obtaining one would have been challenging. The ECJ emphasized that discriminatory intent is not required for an MEQR and highlighted the importance of Article 30 in dismantling restrictive national rules to challenge protectionism by Member States. Dassonville states that Article 28 applies to "all trading rules", including practices, policies, administrative regulations, and action as shown in Commission v Ireland (Buy Irish) and Commission v France (postal franking machines), indicating the court's discretion in its ruling.

The Buy Irish case illustrated that Article 28 of the EC Treaty prohibits state action favoring domestic products over imports. The European Commission challenged the campaign as an MEQR, highlighting the substance over the form approach adopted by the ECJ. Similar reliance on this approach was demonstrated in Commission v UK, where origin marking on goods breached Article 28, unless under special provisions. Craig and De Burca point out that discriminatory or protectionist measures go against the single market idea and are caught under Article 28. Discrimination against imported goods will be prevented both directly and indirectly by Article 28, despite the lack of focus on discrimination in the Dasonville case. The Buy Irish case reveals vertical direct effect of Article 28, applicable to a range of bodies. However, horizontal direct effect is not applicable due to its limited interference with private parties, addressing only Member

States. The Angonese case also supports horizontal direct effect, in line with the free movement of workers.

The state may be required to intervene when individuals disrupt the implementation of Article 28, as seen in Commission v France (Spanish Strawberries). In this case, the French government was denounced for not taking action against farmers who obstructed the free movement of goods. Article 28 does not permit state action that could potentially breach it, including measures that have an equivalent impact to a quantitative restriction. These types of measures can be broken down into two categories: "distinctly applicable measures" and imports, which fall under Article 2 of Directive 70/50 issued by the Commission.Distinctly applicable measures are comparable to direct discrimination, as they favor domestic products over imported goods, contravening Article 28. The use of Article 30 can only rectify such breaches, as exemplified by the Buy Irish case and Dasonville where national rules requiring certification disproportionately favored direct importers. The court's decision in Apple and Pear Development Council v Lewis (Buy British Fruit) revealed that the promotion of specific fruit qualities and their association with national products is acceptable. However, this kind of promotion must be carefully executed to avoid state-sponsored promotion of national goods that indistinctly applies unjustifiable measures to foreign products. Learn more about indirect competitors of Apple here.

According to the law, promoting specific goods with distinct qualities is allowed if it is State-sponsored, but promoting unlawful items is not permitted. Only if a product is deemed "special" can a Member State identify it specifically. In the Irish Souvenirs case, the court agreed with the Commission's viewpoint that knowing a product's origin was not necessary

unless it met certain quality criteria and satisfied the Dassonville formula. The ECJ asserted that marking a product's origin could impede its importation and slow down the economy in the Community, thereby affecting free movement of workers and services. Article 28's extensive scope is emphasized again by the court's decision.

Additionally, national regulations that favor domestic products, such as Commission v Ireland (Irish pipes), were deemed a violation of Article 28 for limiting the supply to only Irish manufacturers. Measures that are apparently discriminatory are referred to as indistinctly applicable measures; they apply equally to both local and imported products but adversely affect the latter. This was demonstrated in Rau30, where Belgian law required that margarine be packaged differently from butter, making it impractical for imported margarine to be sold without repackaging, thus infringing Article 28. In Mars32, the obligation to repackage bars for sale in Germany incurred extra advertising and packaging costs, breaching Article 28. The court urged companies to adopt a "Europe-wide marketing strategy" to foster a single EU market, promote unity, and prevent unwarranted financial burdens on consumers.Regarding ingredients in products like Deserbais, it may be considered a broadly applicable approach. The French mandate that 'Edam' cheese must have only 40% fat was deemed a violation of Article 28.

Commission v Italy also demonstrated a violation of Article 28 when describing a "chocolate substitute," as it could potentially impact consumers' perception of chocolate by being viewed as inferior. These cases illustrate the broad and negative approach of Dasonville, which was challenged by the principles of mutual recognition and equivalence introduced in Cassis de Dijon. These principles recognize that goods lawfully produced should be allowed

to move freely between Member States, without discrimination based on origin. The rule applied in Cassis, which pertained to all fruit liqueurs marketed in Germany, was considered indistinctly applicable. Prior to Cassis, any situation falling under the Dasonville formula would constitute a breach of Article 28 and require justification under Article 30.

Since the Cassis case, courts have implemented the rule of reason for Article 28 and, if necessary, for measures that are not clearly applicable. Measures that are clearly applicable generally violate Article 28, but may be justified under Article 30. Article 30 is the only provision that can save measures that fall under Articles 28 and 29, and it is strictly applied by the courts. Before applying Article 30, the courts carefully scrutinize the measure to determine if it meets the proportionality test established by a new category created to define the areas covered by the Article. One of these areas is public morality, as illustrated in the Henn and Darby case. In this case, the court ruled that a ban on pornographic material was justified under Article 30.

The court's decision stated that each Member State had the authority to determine their own standard for pubic morality (42). However, in the case of Conegate, the United Kingdom was unable to implement a ban on imported goods because Article 30 is interpreted narrowly and only applies to domestic production. This principle of equivalence must be maintained. The Irish Souvenirs case highlighted that mandatory requirements are broader in scope, and Article 30 could not be referenced due to discrimination against imports. The court's decision in Cassis declared that it was the responsibility of the Member States

to resolve disputes between themselves, but these agreements could be challenged if they did not fulfill mandatory requirements or if they were disproportionate and violated Article 28.

The introduction of additional requirements aimed to complement Article 30 derogations was subsequently determined to apply solely to measures that are not solely related to economic interests. The two primary obligatory requirements are safeguarding public health and ensuring consumer protection, as exemplified in the Clinique case where the term 'clinique' did not deceive buyers since it was marketed as a cosmetic. The Cassis case was a critical turning point in the interpretation of Article 28; the court's approach was considered a "radical shift of emphasis on favor of free trade."

Although Directive 70/50 intended for Article 28 to apply less strictly, the principle of equivalence has helped create a community market and reduce protectionism. The scope of Article 28 has widened, reducing the need for community harmonization and boosting competition for consumers. Yet, there are some uncertainties about the regulatory structure of cross-border trade, which can lead to traders facing lengthy processes and technical requirements. Currall believed that the Cassis decision could cause chaos and highlight the importance of accelerating harmonization efforts.

The judiciary received criticism for not establishing adequate rules to regulate the Community-wide market. This criticism became more apparent when cases, such as Cinetheque, which dealt with equal burden rules, were deemed to fall outside the limits of Article 28. Advocate General Slynn disagreed with this categorization. The issue of the outer limits of Article 28 was further raised in Torfaen BC v B;Q plc52. Although the case was similar to Cinetheque, the decision on Sunday trading laws

was left to the national court.

The proportionality of trading laws was deemed appropriate by the ECJ, and subsequent cases helped provide guidance for national courts on this matter. However, the Keck case challenged previous approaches to cases as traders increasingly used Article 28 in relation to goods that were not from Member States. This prompted a departure from the broad application of Dasonville. The court determined that Cassis type rules fell under Article 28 and that rules related to selling arrangements placed an equal burden on all traders marketing their goods, such as in the Familiapress case. Despite raising questions about the nature of the product, this case was found to fall within Article 28.

In Hunermund v Landesapothekerkammer Baden-Wurttemberg, the court deemed that the regulation fulfilled the Keck test, rendering it outside the ambit of Article 28. The cases of de Agostini58 and Gourmet also fell beyond the scope of Article 28. The court emphasized that selling arrangements pertained to national law, making them non-discriminatory. Any rules that demonstrated a protectionist impact, favoring domestic products, were automatically within the purview of Article 28. The Gourmet case reinstated the Dawsonville formula, which existed before its application to Keck, and refined the application of Dasonville to ensure equal treatment of domestic and imported products61. While in Keck, rules concerning selling arrangements were clarified by the ECJ, the Keck formula has received substantial criticism.

While the cases so far have been consistent with the formula and do not discriminate in law or fact, they do restrict the advertisement of mass market products. This overlooks the connection between advertising and marketing that Advocate General Jacob emphasized and restricts economic activity

in the Community. The ECJ has some interpretive leeway with Article 28 due to its evolution from the Dasonville formula, which is particularly strict on discriminatory import and export laws. Article 28 initially addressed discriminatory and protectionist measures within the Community, but was extended to cover rules that apply indiscriminately, as seen in Cassis. Cassis helped establish a single market and harmonization justified by mandatory requirements, which is broader than Article 30 and can be evaluated based on the principle of proportionality.

According to the text, Article 30 was the only way to salvage discriminatory measures within a certain category. The court had previously overlooked the connection between Article 30 (28) and internal market building, leading to a reexamination of Article 28 in the Keck case. Despite criticism for being overly formalistic, the court was able to prioritize market access while allowing for future changes.