What are the outer limits of Article 28 EU?

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What are the outer limits of Article 28 EU?

The free movement of goods is one of the ‘four freedoms’ set out by the Treaty of Rome, to aid economic integration, with the aim to achieve a common market, between member states. They were designed to establish the basic principles of a custom union between Member States. Articles 28 EU to 31 EU have been essential in achieving single market integration. Essentially this was created to serve as a wealth maximization mechanism in the Community and to protect the domestic market, according to the economist’s point of view and acted as a form of protectionism, following the long history of war in Europe. The free movement of goods has been embodies in Article 28 EU, which provides “ [q] uantitative restrictions on imports and all the measures having equivalent effect shall be prohibited between Member States”. This provides two measures, quantitative restrictions and measures having equivalent effect to a quantitative restriction, which the ECJ has had much discretion in the broad interpretation of the case law concerning the discrimination of goods, as well as distinctly and indistinctly applicable measures. This essay will outline the development of Article 28, and examine the acceptance of the ECJ’s decisions by Member States in order to achieve an integrated Community. It will then go on to examine the courts approach to Article 30 in order to achieve harmonization and examine the relationship between positive and negative harmonization and the principle of mutual recognition, as well as the response to these measures.    

The Geddo case first defined a quantitative restriction broadly as a ‘measure, which amounted to a total or partial restraint of according to the circumstances, imports, exports or goods in transit’, which is part of Article 28. However the ECJ found more difficulty defining all measures having equivalent effect (MEQR), which was attempted in the case of Dassonville, where it said ‘ all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions’. This is a very broad view and in principle, measures having only an indirect or potential effect on trade fall within its scope and therefore breaches Article 28. The main concern in the case being that there was no certificate and it would have been very difficult to obtain one, because the whisky was in free circulation. The ECJ made it clear that in providing an MEQR, a discriminatory intent is not required and it placed much emphasis on the “vigour of Article 30 as a means of dismantling restrictive national rules”. This along with the MEQR seems to challenge protectionism that the Member States seem to have practiced, evident in the cases below.

 

According to Dassonville, Article 28 applies to ‘all trading rules’, but this can be misleading because the general term ‘measure’ does not have to be legally binding, such as in Commission v Ireland (Buy Irish) , which showed that the term ‘rules’ include practices and policies, as well as administrative regulations and action in the later case of Commission v France (postal franking machines). Again this demonstrated the breath of the courts discretion in its ruling. The Buy Irish case emphasized the fact that Article 28 forbids action by the state to promote domestic products over imports, where the commission brought an action claming that the campaign was an MEQR. This case demonstrated that the ECJ’s general approach to cases and that it looks at “substance not form”. This was similarly seem in the case of Commission v UK, where the origin marking on certain goods was a breach of Article 28 as an MEQR, unless it fell under special provisions (i.e. if the mark of origin was detrimental). As Craig and De Burca put it, that “if a policy decides to embrace a single market, then discriminatory or protectionist measures will be at the top of the list of those to be caught, since they are directly opposed to the single market idea”. This shows that discrimination against imported goods will be prevented at all costs and both directly and indirectly measures will be caught by Article 28, even thought the Dasonville case itself did not focus on discrimination. The Buy Irish case proved that Article 28 has vertical direct effect, because it can be applied to a wide spectrum of bodies. However it seems that the Article does not have horizontal direct effect, even though the case on Angonese saw it as reasonable that if free movement of workers had horizontal direct effect, then the same should be done for goods. The reason being that Article 28 does not interfere with private parties and addresses only Member States.

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However in some cases the state may have to interfere with the actions of individuals if they disrupt the application of Article 28, established in Commission v France (Spanish Strawberries), where the commission took action against the French government for failing to take action against the free movement of goods being obstructed by farmers. Article 28 prohibits State action as well and that for a measure must have potential effect to be considered to breach Article 28.

Measures capable of having equivalent effect to a quantitative restriction falls into two parts, firstly what is know as ‘distinctly applicable measures’ which ...

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