Can Selling Arrangements Be Harmonized - Essay Example

?Trade relationships as well as sales arrangement have two sides, positive and negative. It is vital to clearly understand the issue of harmonizationpeculiar for such scenarios in the internal and external milieus of the economy. Thus, the role of courts is to encourage the national growth by means of judicially weighed recommendations and decisions which do not escalate the economic and political stability of the community. The article Can selling arrangements be harmonized? By Gareth Davis rediscovers a step-by-step continuum of core mechanisms in the European Court alongside with the articles 28 and 95 in their relation to the Keck doctrine. To be specific, a critical analysis of the article is a so-called way toward re-evaluation of the trade solutions in terms of judicial system in Europe. First off, the author claims to rediscover the issue of the internal market from the rational point of view in the scope of other relationships and vital constituents the nation gets in the economical and social sense. In this respect Davis admits that positive harmonization has a broader remit, because the Treaty makes clear that the internal market is to be a market which respects non-trade values.1 Given that, the movement of goods in the course of judicially confirmed agreements and arrangements should strive to be harmonized at a particular point of interaction within the internal market. However, such integration requires a deeper analysis of positive and negative implication related to selling arrangements and the point of harmonization. Catherine Barnard finds the approach by Davis interesting in regards with the ethical and environmental concerns dealing with tobacco companies providing sponsorship to the sport associations based on the article 95.2 Definitely, the article by Davis urges for finding out the exact equilibrium and logic between the solutions by the European Court and current need of paying much attention to the socio-political reforms for the sake of the internal market positive development. In this vein, the Keck doctrine states that national rules concerning selling arrangements were not to be seen as measures of equivalent effect to quantitative restrictions, so long as they applied equally in law and in fact to foreign and domestic goods.3 This is why the overall contradiction took place. Due to the fact that the article 95 serves a powerful instrument toward establishment of more democratic ways of the internal market functioning, there is still less points on the equality proviso. On the other hand, the article 28 is put forward to reclaim the feasibility of the Courts to make sure the trade agreements are made in keeping with the best tradition of the European letter of law. To say more, the article takes notice of the national law regulations serving for proportionality as it is.4 Looking at harmonization through a lens of debates referred to the consumers’ rights, Keck doctrine emphasizes the extent of distortions. Therefore, the competition in trade relationships is merely based on the quality and transparency of the policy-making approaches by the trade companies, it is vital to mention that the distortions of competition is a normal phenomenon in the economic activity among different states. Davis highlights in his article that the difference in views on the internal market development and the way it should be presented in a developed country serves a driven power for the emergence of distortions: In fact the relative cost differences resulting from more or less strict consumer contracts may well be extremely marginal. Consumer measures are not primarily concerned with quanta of damages, which might have, for some industries, significant economic impact5 Influence of selling arrangements cannot but be visible on a state’s performance in the world arena. The fact is that the de minimis rule is one of the core elements to provoke distortions as the opinions will differ regarding the commercial versus social implications for the society. Whereas article 95 is more relevant toward the qualitative prescriptions regarding de minimis rule, article 28 touches upon the quantitative regulations as of the movement of goods in a narrower technical prohibition.6 Disseminating the significance of positive harmonization, one cannot totally give up on the negative side of it. The question is that it helps courts to keep a strict eye on the current regulation by means of the case law and authorizing community actions which is referred in the article by Davis to the internal market itself.7 Reviewing the law in the European zone, it is necessary to mention that the most challenging aspect in the judicial practice is to which way of judgment to choose. Once again, Davis states that it incorporates the distortion itself, and that the harmonization can be subtly achieved once the consensual way out is found. That is to say, a critical analysis of Art.95 versus Art.28 presupposes the following objective estimation: Article 95 is a positive prohibition, used by legislative organs according to rules that ensure, at least to some imperfect extent, democratic control. It removes national laws, but replaces them with new Community ones, ensuring no regulatory gap… By contrast, Art.28 may involve an unelected judge effectively removing national legislation, at least in so far as it applies to imports, without replacement.29 It can leave a legal vacuum, and there is a distinct risk that such a blunt approach could result in nontrade interests suffering.8 Given that, the article by Gareth Davis should be taken and employed for the purpose of a detailed evaluation of harmonization itself and possibility of selling arrangements to be put to a mere extent independently from the law manipulating either with one or another article. As a result, new rules for an existing Treaty may emerge eventually. The reason is that courts may cover their decisions by saying that it is to justify national product rules and their acceptance by all, with no exclusion, individuals and parties involved into it.9 Strange it may seem, however, courts encourage the appearance and further firm development of distortions in the internal market, though an area of undistorted competition is to maximize trade.10 Personal evaluation Gareth Davis shows an impeccable manner of a rallying voice in the situation when Europe is quite burdened by bureaucratic nuances in socio-political and judicial fields of activities. Hence, the article justifies where the impediment is concentrated and where the solution should be found out. Case law and the judicial system in Europe provide quite many of barriers for ensuring free trade solutions in the context of the European law. To make it plain, it is apparent that the courts overuse their influence relying just on Art.28 and Art.95 in conjunction with Art.14, and Keck doctrine. In addition to the irrational blackouts used within the internal market and different relationships accumulated in it, there is quite less solutions to impact the courts, unless to continue criticizing them in a straight-forward manner. The approach by Davis is well commented in the study by Oliver Castendyk, E. J. Dommering, фтв Alexander Scheuer in that discrimination between domestic and foreign products or services is not permitted, and when a foreign good or service is introduced on the domestic market it must not be unreasonably disadvantaged by excessively restrictive selling arrangements.11 Thus, the technical side of the debate touches on the lack of fairness regarding trading. With that in mind, there is hardly a way toward harmonization of selling arrangements. On the other hand, the article is a manifestation of all weak points in the judicial system. First, economical discrimination between two major sectors of the economical growth. Second, there is an imparity in the judicial system as of which solution to choose and which legal document to take as a proof of the court’s righteousness. Third, solely trade (commercial) orientation disregards non-trade values and freedoms. Paul Kapteyn could not but remind the review by Davis in his study on the Lisbon Treaty. Thereupon, the issue of selling arrangements harmonization should be redirected in order to make a free access to the market even though it is impossible to make a clear distinction between product requirements and selling arrangements.12 Certainly, a discovery of environment and consumer friendly markets leads to a disproportion of stakes between competitors which are normally regulated and sorted out by dint of Art.95.13 Thus, the article itself is another challenge toward existing set of priorities in the judicial branch of power still appreciated by the governments and, above all, unwanted in the course of the future economic capacity stability in growth and development. Moreover, numerous explanations by the European Court of Justice (ECJ) of the reasons why this or that proviso or amendment did not match European values still full of unclear points.14 This idea is well established in the overall claim that uncertainty in the decision-making process still threatens the future trade solutions in Europe on the whole and in the internal markets of different states, in particular. Again, ECJ relies fully on Keck where a measure concerning selling arrangements constitutes an obstacle to the free movement of goods.15 This trend seems never-ending for European countries today. Bibliography Barnard, C. 2007. The substantive law of the EU: the four freedoms. Oxford: Oxford University Press. Castendyk, O., Dommering, E. J., and Scheuer, A. 2008. European media law. Amsterdam: Kluwer Law International. Davis, G. 2005. Can selling arrangements be harmonised? European Law Review . Kaczorowska, A. 2008. European Union law. London: Taylor & Francis. Kapteyn, P. J. 2008. The law of the European Union and the European Communities: with reference to changes to be made by the Lisbon Treaty. Amsterdam: Kluwer Law International. Konstadinides, T. 2009. Division of powers in European Union law: the delimitation of internal competence between the EU and the member states. Amsterdam: Kluwer Law International. Read More