Judicial politics of the EU Court of Justice - Coursework Example

?European Union Trade Law Essay According To The European Commission, “The Free Movement Of Goods Is One Of The Success Stories Of The European Project.” Discuss This Statement From A Critical Perspective, Basing Your Analysis On Significant Case Law In This Area Table of Contents 1.0 Introduction 3 2.0 Background Discussion of judicial politics of the EU Court of Justice 4 3.0 Interpretation of ECJ’s General Provision on the EC Treaty 6 4.0 Case Discussion of the ECJ’s Verdict in Petition Related to Movement of Goods 11 4.1 Case C-8/74, Procureur du Roi v Benoit and Gustave Dassonville 11 4.2 Case of Creme de Cassis 12 4.3 Case of Keck 13 4.4 Case C-319/05, Commission of the European Communities vs. Federal Republic of Germany 14 4.5 Case C-99/99, Italian Republic vs. Commission of the European Communities 15 5.0 Conclusion 16 Bibliography 18 Cases 18 Scholars and Articles 19 Books 20 1.0 Introduction The European Union (EU) which came into existence on 25th of March, 1957 holds its aim towards promotion of economic activities with a balanced and continuous expansion of activities and accelerated enhancement of standard of living and to build stronger relationship between the states that belong to the union. The objectives of the union can be achieved through establishment of a common market that allows free movement of goods within the states of the EU. Although more than half a century has passed since the formation of the treaty, its notion of the free movement of goods is still in its building stage. The free movement of goods would endorse production efficiency because the entire process would make various countries’ producers compete directly in the open market. For the purpose of following the free movement of goods notion, the internal trade barriers that lead to discriminatory restrictions among the EU states should be removed. Thus, the member states under EU should abstain from inflicting the trade restrictions on exports, imports or transit goods among themselves. However, after passing of nearly six decades, true freedom of movement of goods by the member nations is not enjoyed within the European Community. Various obstacles impede on the free movement of goods inclusive of explanation of the European Court of Justice (ECJ) towards general provisions concerned on the goods’ free movement under the EC treaty. The obstacles are also inclusive of several exceptions to the general provisions of Articles under the EU.1 In this research paper, the first section will present considerable background discussion towards the EU Court of Justice’s judicial politics. The second section will evaluate the interpretation of the ECJ’s general provisions on the EC treaty towards free movement of goods. The third section will be presented in the form of analyzing and discussing various cases that led to crucial judgments of the EU Court of Justice. In the last section of the research paper, conclusion will be drawn for determining the level of viability of the European Commission’s statement that signified the free movement of goods as one of the success stories of the European project. 2.0 Background Discussion of judicial politics of the EU Court of Justice In the European Community (EC), a number of judicial politics prevail. The background discussion of the judicial politics can be supported by the case C-70/88, European Parliament vs. Council. In the case, it was proved that the protection of the Parliament under the system is not effective enough as in the case the Commission displayed the shortcomings by taking the Council’s side with respect to the selection of the appropriate legal base for the regulation in concern. It was evolved in the case through Advocate General Van Greven that the Parliament should be granted limited action rights for defending its own privileges.2 From the judgment in the case, it was recognized by the ECJ that the prevailing legal remedies were not completely liable to provide guarantee in all the circumstances that a measure would be reviewed that has been initiated in disregard to the prerogatives of the Parliaments. From the case’s consequences, it was revealed that the court must be able to uphold the institutional balance and should be in a position to review the prerogative of the Parliament while being asked by the Parliament to do so. On assessment of the entire case facts, a number of facets of the judicial politics in the EC aroused. Firstly, it depicts that courtroom access is considered to be important for any such institution such as that of the European Parliament for undertaking in a strategy of exacting litigation and lengthy process so that the Court of Justice recognizes its scope of right. Secondly, the case facts suggest that the judicial politics are required to be considered from long term perspective and not on a case-by-case basis. As the Parliament gradually accessed to the litigation, it gave rise to several starts and stops for the Parliament. Due to this, the legal committee and the legal service were found uncertain at various points of time. The entire uncertain process had acted as a striker in the Court’s overall continuity. However, ultimately the distinct force combination helped in promoting the development strategy successfully on the part of the legal arsenal of the Parliament. Another judicial politics of the ECJ, as evident from the case showed the level of decisiveness in the ECJ’s definition of its own role. The case had suggested to the judicial politics of the ECJ that if it would have followed more conservative attitude towards the case or if it would have shown more concern towards political reactions of its rulings, the scenario of the case could have been different.3 With regards to the evaluation of the jurisdiction of Kohll and Decker, two of the European Courts of Justices suggest that the ECJ enjoys substantial autonomy from the interference of the Member States and enjoys its own program of EC law application in a uniform manner all over the Member States. Moreover, at the same time, the autonomy of the ECJ is constrained by the interests of the Member State and specifically when the activities of the Member States affect the core functions of the ECJ. The judicial politics of the ECJ, in the present scenario wants to make certain that its rulings are accepted by the Member States and incorporate these rulings accordingly in their own administrative practices and laws.4 3.0 Interpretation of ECJ’s General Provision on the EC Treaty The keystone of the European Community and the basis of formation of the EC Treaty has been the free movement of goods. The article 14 (formerly 7A) provides the definition of the internal market and it depicts the legal basis of internal market creation within the European Community. The Article defines that in order to produce the internal market, it is essential that all the internal barriers related towards movement of goods within the EC gets removed. The Article defines barriers into three forms: physical barriers, fiscal barriers and technical barriers. Among the barriers defined under the Article, the technical barriers are the most important ones as they seem to effect the free movement of goods in real sense.5 The explanations of the general provisions defined by the ECJ on free movement of goods under the EC treaty can be presented in the form of four groups. The groups will be discussed in this section of the research paper with reference to various cases of the Article. (I) Article 23 (formerly 9) and Article 24 (formerly 10) define the rights allocable to goods which are produced in a Member State and also in a third country to make the goods freely move within the Community. Article 23 (1) provides that a customs duty would govern the Community that will guard all the goods trading and would also involve the prohibition in imports and exports of goods among the Member States. Two important dimensions had emerged from the Article: one of which defines the meaning of goods and the other defines the provisional application of free movement of goods. Meaning of Goods In the case C-110/05, Commission of the European Communities vs. Italian Republic, the facts revealed that the Italian Government were following exportation prohibition of the treasures of art and claimed that “goods” are not considered as the treasures of art. On the contrary to this claim, the ECJ has defined goods as “products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions”. Following this definition of the goods, treasures of art are considered to be goods under the Article 23 (1). However, this definition of goods got extended later on in a few cases by the ECJ.6 In the case C-347/97, Commission of the European Communities vs. Kingdom of Belgium, Belgium claimed that waste does not fall under the category of “goods” and thus imposed prohibition on waste importation. They claimed on the grounds that no commercial value is held by the waste as this cannot be reused or recycled, but the ECJ dismissed the submission and it was held that waste constitutes goods.7 Electricity was defined as goods in the case of Almelo vs. Energiebedriff Ijsselmij by the ECJ. However, the conclusion that “goods” consisted of all the intangibles were not mentioned by the ECJs.8 Provisional Application of Free Movement of Goods The provisional application towards free movement of goods applies for the following set of movements of goods: Firstly, the provisions apply towards movement of goods sold by one Member State to another Member State. Secondly, the provision applies towards movement of goods in transit that is moving through one Member State to another where it would be sold or to any other states apart from the ones in European Community. In the case C-266/81, SIOT vs. Ministry of Finance it was confirmed by the ECJ that the Community Legislation general principle governs the freedom of goods to be transited within the Community.9 Thirdly, the provisions allow to the goods re-importation which one Member State had imported from another state, where the goods were either placed on the market or produced. Fourthly, the provisions also apply to the imports in parallel. Fifthly, the general provisions under the EC treaty apply to the goods movement generated by the individuals. In the case C-362/88, GB-INNO-BM vs. Confederation du Commerce Luxembourgeois, it was confirmed by the ECJ that free movement of goods are apprehension of not only the traders but it is also concerned with the individuals. It was hold by the ECJ on the ground that specifically in frontier areas, consumers living in one of the Member States may choose to travel freely to another Member State’s territory for shopping under the similar scenario as that of the local people in the other Member State.10 Another case C-62/90, facts were revealed that German Customs Office dismissed the personal medicines’ importation by Mr. Schumacher from France. It was held by the ECJ that the law in German showed inconsistency with the Article 30 (now 28) because it did not justify the general prohibition of imports from individuals.11 Lastly, the general provisions apply to the goods’ movement that involves no commercial transactions. The ECJ confirmed this treaty in the case of waste disposal, Commission vs. Belgium. Article 24 (formerly 10) of the EC treaty states that goods from a third country can be freely moved in the Member States if the following three conditions are fulfilled: the goods should pass the formalities of imports, payment for goods have been made in the importing Member States in any payment equivalent to any charges or customs duty of that Member States and the goods should not be benefited from partial or total drawbacks in the charges or duties. (II) Article 25 (formerly 12) provides that Member States should not include any charges or customs duty on import and export between themselves and should also abstain from increasing any of the charges already applicable in the trades between them. In the case C-26/62, Van Gend & Loos, it was held by the ECJ that Article 25 had given rise to individual rights and had direct effect that has to be protected by the national courts and thus individuals could appeal to the courts.12 (III) Article 90 (formerly 95) provides abolition of the discrimination in domestic taxation and generates measures against them. The Article provides that either directly or indirectly, no internal taxation should be imposed by any Member States towards other Member States in excess of the taxation imposed on similar domestic items, either directly or indirectly. According to the Article, prohibition on internal taxation is applicable not only for the finished products but also for the products’ raw material or any components.13 In the case C-170/78, tax on Beer or Wine Case, Commission vs. United Kingdom, facts were revealed that different taxation levels were maintained by the UK on beer and wine. However, it was held by the ECJ that both wine and beer fall under the same category and taxation differences depicted violation of the jurisdiction under the Article 90.14 (IV) Article 28 (formerly 30) and Article 29 (formerly 34) laid down the abolition of quantitative restrictions and related measures. The former depicts that import’s quantitative restrictions and its related measures would be banned between the Member States and the latter depicts that quantitative restrictions on exports would be banned among the Member States.15 The meaning of quantitative restrictions has been defined by the ECJ in the case of Riseria Luigi eddo v. Ente Nationale Risi. The ECJ stated that “the prohibition on quantitative restrictions cover measures which amount to total or partial restraint of, according to the circumstances, imports, exports or goods in transit.” Hence, it depicts that the notion of quantitative restrictions imposed by the ECJ not only covers the quotas under the Article 32 and 33 (now rescinded by the ToA) excluding the total ban on exports or imports.16 4.0 Case Discussion of the ECJ’s Verdict in Petition Related to Movement of Goods On the basis of the interpretations under various Articles of the EC treaty of the movement of goods regarding the general provisions, the following cases have been chosen to be discussed in the research paper: 4.1 Case C-8/74, Procureur du Roi v Benoit and Gustave Dassonville This section will discuss the case C-8/74, Procureur du Roi v Benoit and Gustave Dassonville on the interpretation of EC Treaty’s Articles 30 to 33, 36 and 85. In the year 1970, a French wholesaler, Gustave Dassonville and his son Benolt Dassonville, who used to manage one of the business’ branches in Belgium, imported the brand ‘Johnie Walker’ and ‘Vat 69’ which are actually Scotch Whiskies. The brands were purchased by Gustave Dassonvile from the two brands’ French distributors and importers. Dassonvilles affixed on the bottles label which read the printed words ‘British Customs Certificate of Origin’. This label was followed by a note of the number written by hand and French excise bond’s date on the register of permit. Although the goods cleared the documentation requirements and got duly imported to Belgium by clearing the customs purposes as “community goods”, the documents were not considered as satisfying the Royal Decree No 57 of 1934 objectives by the authorities in Belgium. The court was asked to provide a judgment as to whether the Belgium law was enforcing quantitative restrictions and violating the law under the Article 28. After several proceedings, it was decided by the court that an EU’s Member State’s requirements of an authenticity certificate, which is more accessible by importers of a product that comes directly from the original country than by importers, who have been enjoying regular free circulation, create a measure that has an impact equivalent to quantitative restrictions by the Treaty.17 The definition of quantitative restrictions as arrived in this case was redefined in the Geddo vs. Ente Nazionale Risi as those measures that give rise to total or fractional moderation of exports, imports and goods in transit based on the circumstances.18 4.2 Case of Creme de Cassis The case of Creme de Cassis is that controversial case which was at the center of discussion in the European Court of Justice during the year 1979. This case paved the extension of Dassonvilles decision which later came to be known as the Dassonville formula. The issue of the case was raised when the German Federal Monopoly Administration for Spirits had put prohibition on the sale of the Cassis liqueur on the ground that general provisions require fruit liqueur to contain 25% alcohol, whereas Cassis contained only 15-20% of alcohol. The manufacturer of the Cassis which was a German importing company brought the case in the European Court of Justice with the claim that the German authorities’ provision acted as a restriction towards free movement of goods among the EU member nations. Due to the ruling of ECJ, the standard of national standards’ mutual recognition appeared as a major component in the European Union’s free market. While the court did not disregard entirely the standards’ and the regulations’ differences in different domestic legislation, a necessity for “urgent needs” was established by the court for permitting these divergences. The court’s decision in this case placed a significant example for non-tariff barriers in the future trade related activities in the EU’s regulatory standards related to the free movement of goods as well as services among the Member States.19 A related case on EU ban on Genetically Modified Organisms (GMO) is another example of non-tariff barrier and that the WTO rules were violated. Based on the violation consequences, the EU was asked to modify the regulations but it was informed to the WTO by the EU that it would not be capable to amend within deadline. As a result of this, a bitter trade war was generated by two bigger authorities.20 4.3 Case of Keck After the two most controversial cases in the history of EU’s justice, another important jurisdiction evolved, that is, the case of Keck. The Keck case was issued at two traders who were claimed to be trading in loss according to the French regulations. The ECJ’s jurisdiction of the Keck case can be viewed as a new effort towards limiting the freedom’s workings in the trading of goods and services. With respect to the growing tendency of the traders for invoking Article 28 of the EC Treaty for challenging any verdicts whose impact is to restrict the commercial freedom, it was considered by the court that re-examination and clarification of the case-law are necessary regarding this matter. It was reaffirmed by the ECJ following this case that rations to be met by the goods which are imported comprise of measures of equal impact which are prohibited by Article 28. However, the ECJ also mentioned that on the contrary to the decision, the national provisions applied to products from several other Member States prohibiting selling measures is not such that they hamper trade among the Member States under the provision of Dassonville judgment. The Keck case controversy is extremely controversial as it seems to restrict the judicial control under the autonomy of measures of discrimination and specification of products.21 As a result of the case verdict, the ECJ also acknowledged that the judgment made in the case of the Cassis had given rise to growing tendency for the traders and they are initiated towards raising the Article 28 as a means of disagreement towards rules and standards, the impact of which had put restrictions on the commercial freedom. 4.4 Case C-319/05, Commission of the European Communities vs. Federal Republic of Germany The case C-319/05, Commission of the European Communities vs. Federal Republic of Germany which was brought on 19th of August of 2005, was taken up under the Article 226 EC alleged towards failure of a Member State within the EU to perform its obligations. The case was based on the preparation of garlic in the form of capsule. The prepared garlic was marketed legally as a supplement of food in various Member States. It was classified in the importation of the Member States as a medicinal product. The Commission of the European Communities, by its application, sought the court’s declaration through classifying the garlic prepared in capsule form as a medicinal product that actually does not come under the definition of the medicinal product. Thus, the Federal Republic of Germany failed to perform its obligations under Articles 28 EC and 30 EC. It was shown in the judgment court under Article 2 and 6(1) of Directive 2001/83, medicinal products that are industrially produced cannot be placed in a Member State’s market until and unless the Member State’s authorities issue a marketing authorization. It was thus followed that if an industrially produced product falls under the meaning of medicinal product (under the Article 1(2) of Directive 2001/83) the obligation on the product’s importer towards acquiring authorization for marketing with the directive authority before actually marketing the product in the Member State cannot restrict the Member States under the EU (restriction prohibited under the Article 28 EC). The directive 2001/83 aims to protect the consumers from not only toxic or harmful medicinal products but also those products which are used as other than the appropriate remedies. The medicinal product definition by presentation resulted in arriving at the judgment of the court of justice.22 4.5 Case C-99/99, Italian Republic vs. Commission of the European Communities The Case C-99/99, Italian Republic vs. Commission of the European Communities appeared in the Court of justice on 14th of December, 2000 and was alleged with the marketing standards for olive oil. Through the application lodged on March 17, 1999 at the Court Registry, an action was brought by the Italian Republic under the EC Treaty Article 173 in the first paragraph. The action was brought concerning the olive oil marketing standards. According to the Article’s first paragraph, the standards cover particularly packaging, quality grading and presentation. The Italian Republic claimed to the Commission that it had erroneously and illogically used the discretion granted by Article 35a of Regulation No 136/66. The Italian Republic also claimed that in the Article 2(2) third sub paragraph first indent, it was represented that the brand names that were registered before 1st January in the year 1999 should not be governed by the regulation’s provisions. The claims of the Italian Republic, on the basis of Directive 89/104 misapplication were rejected and the Italian Republic was asked to bear the costs.23 The facts in this case were issued on simpler grounds than those of the earlier few cases. The judgment went towards the favor of the European Communities as the pleas put forward by the Italian Republic could not be vindicated under logical grounds by the agents representing the Republic. 5.0 Conclusion The development of a single market is a key aspect towards the scenario of growth along with creation of jobs in generic terms. However, in order to achieve success, it requires effective and timely execution of important legislation. The European Commission monitored laws, the EU Treaties’ effective monitoring and careful investigation of committed intrusions ensure that the businesses and citizens enjoy the full benefits of the basic principles of the Union. The free movement of goods is the most essential part of the basic principles of the Union. From the legal point of view, the free movement principles of goods have acted as a key element in the development and creation of internal single market. The cases discussed under various EC Treaties’ Articles provide evidence that several major restrictions such as that of quantitative restrictions have been removed from the process of free movement of goods in the Member States in the EU. The success story of the development of single market is evident from the generation of combined Gross Domestic Product of approximately a trillion Euros during the year 2010. Besides generating huge GDP, the combined nation has given rise to more than 600 billion Euros in extra wealth and new jobs, millions in number since its launch. The success factor is due to the fact that the Treaties are all about free movement and it is a prominent success factor in the growth story of the EU. The trade in intra-EU had risen from below 25% of the Union’s GDP in the year 1991 to 38% during the year 2005. In addition to this figure, almost 75% of trade in intra-EU is in the form of goods.24 On the whole, despite the evidences of success of free movement of goods, the single market is considered as a complex structure. This is because the market is composed of sectors identified as harmonized and non-harmonized. The harmonious products are those products which are confined by general European procedures, rules and standards. On the other hand, the same rules and standards along with procedures do not govern the sectors of ‘non-harmonized products’. These different procedures, rules and standards prevent the Member States from maintaining and adopting restrictions that are unjustified on the trade in intra-EU. An important trait of the EU is that its functioning is effective in the sense that the moment it finds that a violation has occurred; it begins by directly contacting the Member State in question. Its objective is always to accomplish instant resolution. Thus, viewing the statement of the European Commission regarding the success story of free movement of goods from a critical perspective, support can be provided to the statement as regards to the success evident from the research. Bibliography Cases Case C-70/88, European Parliament v Council of the European Communities. Case C-110/05, Commission of the European Comunities vs. Italian Republic. Case C-347/97, Commission of the European Communities vs. Kingdom of Belgium. Case C266/81, Societa Italiana per l'Oleodotto Transalpino (SIOT) v Ministero Delle Finanze. Case C-362/88, GB-INNO-BM v Confederation du commerce luxembourgeois. Case C-62/90, Commission of the European Communities v Federal Republic of Germany. Case C-26/62, Van Gend vs. Loos. Case C-170/78, Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. Case C-8/74, Procureur du Roi v Benoit and Gustave Dassonville. Case Creme de Cassis. Case Eu Ban On Import Of Genetically Modified Products. Case Keck. Case C-319/05, Commission of the European Communities vs. Federal Republic of Germany. Case C-99/99, Italian Republic vs. Commission of the European Communities. Case C-60 and 61/84, Cinetheque SA and others v Federation nationale des cinemas francais. Scholars and Articles Aslam, M., 2009. Consumer Law Seminar. Master of EIPL. 1 European Commission. Free movement of Goods: Guide to the Application of Treaty Provisions Governing the Free Movement of Goods. Enterprise Policies. 17-24 Europa Treaties, 2011. Consolidated Version Of The Treaty Establishing The European Community. Treaties. 51-58 European Commission, 2011. Safeguarding the Free Movement of Goods. Magazine. Gorka, M., 2001. Free Movement Of Goods General Introduction Articles 28 – 30 Ec Treaty. Head of Unit ENTR.C.5. 2 Obermaier, A. J., 2008. Models Of Judicial Politics Revisited: The ECJ’s Judicial Activism And Self-Restraint. Paper for ECPR Conference, Section: EU Law and Politics. 2-3 Oxford University Press, 2011. Treaty of Lisbon: Table of Equivalence. Hargreaves: EU Law Concentrate. 2 Puig, G. V., 2008. Federal Free Trade as a Constitutional Principle. WCCL. 4-7 University Dissertations, 2011. The EC Treaty's Free Movement Of Goods And Competition Provisions Perform Complementary Roles. Laws Treaty. Books Alter, K. (2009). The European Court’s Political Power, Selected Essays. OUP. 252 Barnard and Scott (eds.). (2002). The Law of the Single European Market. Hart. 33 Birkinshaw, P. (2003). European Public Law. Butterworths. 108-119 Chalmers and Tomkins. (2007). European Union Public Law. CUP. 25-29 Dehousse, R. (1998). The European Court of Justice: the Politics of Judicial Integration. Palgrave Macmillan. 178 Douglas Scott. S. (2002). Constitutional Law of the European Union. Longman. 331-378 Hartley, T. (2007). The Foundations of European Community Law. Oxford University Press. 265-301 Kaczorowska, A. (2008). European Union Law. Routledge Cavendish. 204-232 Mathijsen, P. (2007). A Guide to European Union Law. Thomson. 592-655 Ward. I, A. (2009). Critical Introduction to European Law. CUP. 111-114 &138-140 Weiler, J. (1999). The Constitution of Europe. CUP. 63-101 Read More