Yearbook of European Law - Vol. 4

By A. Barav; D. A. Wyatt | Go to book overview

'Actually or Potentially, Directly or
Indirectly'? Obstacles to the Free Movement
of Goods*

LAURENCE W. GORMLEY


I. Introduction

It was in the celebrated words which form the title of this article that the Court of Justice of the European Communities first signalled the death-knell of the narrow view of the scope of Article 30 EEC.1 Yet the narrow view has, in practice, still been advanced in legal arguments by Member States, particularly after its revival by Marenco.2 Indeed, there have been a small number of cases in which the Court might appear, on a superficial examination, to have given comfort to this view. The purpose of the present article is, apart from noting the demise of the narrow view, to consider some of the more recent case-law of the Court in terms of the basic principle in Dassonville with a view to assessing how true to that principle the Court is remaining. This assessment is also intended in part to examine the new definition propounded by White.3 In doing so it builds on the present writer's earlier observations on the free movement of goods and the internal market.4


II. The Court of Justice and the narrow view of Article 30 EEC

Marenco's argument for what he called a traditional interpretation of Article 30 EEC is centred on a detailed and elegant analysis of the case-law then decided.5 Marenco's conclusion is that for a measure to be contrary to Article 30 EEC the comparison of the situation of imported products with that of domestic products must show the latter to be more favourable than

____________________
*
© Lawrence W. Gormley, 1989. Professor of European Law-elect, Rijksuniversiteit Groningen.
1
Case 8/74 Procureur du Roi v B & G Dasonville [ 1974] ECR 837 at 852.
2
(1984) CDE 291. See also Defalque ( 1987) CDE471 and Waelbroeck in Cousy et al, Liber Amicorum Frédéric Dumon ( Antwerp, 1983) Vol II, 1329, albeit in a much more nuanced way.
3
26 CMLRev 235 ( 1989). The present writer is grateful to Eric White for sight of his article in preparation and at the proof stage.
4
(1989/1) LIEI 9.
5
In fact a discrimination criterion can scarcely be said to represent a traditional view of measures having equivalent effect. Whilst it is true that a number of German authors had advocated such a criterion that view was hotly contested at the time and has since been shown to be untenable. For the early views see Gormley Prohibiting Restrictions on Trade within the EEC ( Amsterdam, 1985) Chap 2 and Oliver Free Movement of Goods in the EEC, 2nd ed ( London, 1988) 83-6.

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