European Commission Articles Governing the Movement of Goods within the European Union: A Case Law Analysis

By Lu, Lung-Tan | International Journal of Management, June 2008 | Go to article overview

European Commission Articles Governing the Movement of Goods within the European Union: A Case Law Analysis


Lu, Lung-Tan, International Journal of Management


This paper addresses the previous criticism relating to Article 30 EEC (now, after amendment, 28 EC) and analyzes case law from Cassis de Dijon, Keck and Mithouard to Gourmet. The issue of "measures " on national restrictions created tensions between the Court of Justice and the national courts. A new taxonomy is introduced to classify these cases relating to Article 28 EC in this paper. The taxonomy is based on marketing methods of 4P (i.e. product, place, price, and promotion). We attempt to employ the 4P of marketing management as a matrix to classify cases relating to Article 30 EEC and to observe whether the judgments given by the Court have consistency. It is suggested that Article 28 EC should not be classified as selling arrangements.

Introduction

This article aims to examine why Cassis de Dijon and the resulting new forms of economic regulation and governance have succeeded in completing and maintaining the Internal Market when earlier techniques of economic integration seem to have failed. This article addresses the previous criticism relating to Article 30 EEC (now, after amendment, 28 EC). The article analyzes case law from Cassis de Dijon, Keck and Mithouard to Gourmet, and calls for a clearer taxonomy for Article 30 EEC. The following section will briefly introduce the facts and judgments of the cases relating to Article 30 EEC. A short discussion will then follow considering whether these cases belong to the Free Movement of Goods and Services. In the forth section, the issues relating to the interpretation of Article 30 EEC, such as obstacles to trade, non-discrimination, harmonization, justification, product characters, advertisement, and selling arrangements are critically discussed. In the fifth section, a new case taxonomy classified by marketing methods and markets is introduced and categorizes the cases discussed in the first section. This study concludes with suggestions in the final section.

The Facts and Judgments of the Cases relating Article 30 EEC

Case 120/78 Cassis de Dijon

The case of Cassis de Dijon concerned a French businessman, who intended to import a kind of alcoholic beverage called "Cassis de Dijon", which was produced in France and was intended for sale in Germany. The applicant argued that a German regulation placed the imported products in a disadvantageous position in German markets, because it required that the minimum alcohol contents for marketing "Cassis de Dijon" be twenty-five percent. The same product was freely sold in France with an alcohol content between fifteen and twenty percent. Such a regulation, therefore, had an effect equivalent to a quantitative restriction on imported goods, which was contrary to Article 30 EEC. The German authority argued that this regulation related to both consumer protection and public health in order to resist unfair competition. The argument rested upon the contention that the lower alcohol content would obtain a competitive advantage over the higher alcohol content, since the latter was more expensive. Prohibition by national law may be justified, because of mandatory requirements, such as consumer protection, public health, environmental protection, and so on. However, the Court was not convinced and stated that "the consumer can obtain on the market an extremely wide range of weakly or moderately alcoholic products, and, furthermore, a large proportion of alcoholic beverages with a high alcohol content freely sold on the German market are generally consumed in a diluted form." The Court ruled that, since "they have been lawfully produced and marketed in one of the member states, alcoholic beverages should not be introduced into any other member state." Therefore, the minimum requirement of content for the sale of alcoholic beverages regulated by a single state established an obstacle to interstate trade, which was incompatible with Article 30 EEC.

Case 286/81 Oosthoek

In the case of Oosthoek, the Dutch company offered a dictionary, a universal atlas, or a small encyclopedia, which were produced in Belgium, as free gifts to all of its press subscribers. …

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