The Application of EC Law by National Courts: The Free Movement of Goods

By Malcolm A. Jarvis | Go to book overview

9 Completion of the Internal Market and the Effect of Community Harmonization Legislation

1 INTRODUCTION

It has long been appreciated that a dynamic relationship exists between ECJ case law interpreting the fundamental freedoms provided for in the EC Treaty on the one hand, and Community harmonization legislation on the other. This dynamic relationship is characterized by the fact that these two tools of integration complement one another. On the one hand, ECJ case law constitutes 'negative' integration in the sense that it involves national provisions being held to be contrary to specific Articles of the EC Treaty in individual cases. On the other hand, Community harmonization legislation contributes towards 'positive' integration by introducing new standards at Community level which apply horizontally to promote free movement.1

The need for Community harmonization legislation was appreciated at the outset and found expression in Article 3(h) of the EC Treaty which provides that the activities of the Community shall include 'the approximation of the laws of Member States to the extent required for the functioning of the common market'. However, following a period of judicial activism during the 1970s, typified by the ECJ's judgments in Dassonville2 and Cassis de Dijon,3 a consensus emerged that the internal market could not be achieved by case law alone and that major legislative action was also required. This awareness manifested itself in a White Paper published by the Commission in 1985,4 and the Single European Act (SEA) which amended the EEC Treaty to provide the legal machinery for the completion of the internal market by 31 December 1992.5 Several legal methods

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1
See discussion in Weatherill & Beaumont, EC Law, 480-1 and Slot, 'Harmonisation' 379-82. See more generally Vignes, 'The Harmonisation of National Legislation and the EEC'; Curall, 'Some Aspects of the Relation between Articles 30-36 and Article 100 of the EEC Treaty With a Closer look at Optional Harmonisation'; and McMillan, 'La "certification", la reconnaissance mutuelle et le marché unique'.
2
Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837.
3
Case 120/78 Rewe v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
4
COM(85) 310 final. See generally, Bieberet al. (eds.), 1992: One European Market?: A Critical Analysis of the Commission's Internal Market Strategy.
5
The most important legal machinery introduced by the SEA is contained in Art. 7A & 100A EC and came into force in 1987. Art. 100A facilitates the task of completing the internal market by providing a legal base for internal market legislation under which the Council of

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