The Nature of European Union Law - Essay Example

European Union Law The nature of rules as well their respective applications vary significantly based on context despite cases in question arbitrated falling in a similar category (Chalmers, Davies & Monti, 2010). This is due to both inclusion and consideration of varied situations of the involved parties despite the rules in question intended to resolve similar matter at hand. Hence, lead to discrepancies in terms of measures which the court ought to consider in a particular case especially when involving member states because aspects used to back arguments related to those argued may significantly vary (Hargreaves & Homewood, 2013). This leads to the lack of definite distinctions between rules as per their respective categories that vary in terms of tests, which the court normally utilizes to come up with concrete final verdict regarding any case set before it. In most cases, this difficultness or inappropriateness in making exact distinctions by those arbitrating cases while in their line of duties descends from varying member states’ laws. Hence, turn out to be extremely complex despite sometimes aligning with the EU’s general statutes that dictate their member states should not go against certain rules (Chalmers, Davies & Monti, 2010). For instance, this is evident in the case of Leclerc-Siplec. TFI Publicite together with M6 Publicite declined relaying the company’s information to the audience about petrol citing Article 8 No. 92/280 that was constituted in March 1992 (Leclerc-Siplec v TF1 Publicité and M6 Publicité, 1994). This article barred any distribution sector in France from attempting to relay information about its products using specifically television. This is contrary to the laws that advocate liberty in expressing oneself whereby it may disadvantage. This is especially if it is a regional firm whereby in the same state it may end up loosing to its competitors who have dominated the market. Hence, complicating what the entire EU statutes cite about enhancing trade among its members states without them interfering with any trader based on any segregation (Chalmers, Davies & Monti, 2010). Despite in case Leclerc-Siplec v TF1 Publicité and M6 Publicité (1994) stating barring of certain company’s products applies to all players in the same line of operation, it is a disadvantage especially to the new entrants to compete with already established corporations. This is contrary to EU’s statute that guarantees free movement of merchandise, persons and enhancing of health competition, which Keck together with Mr Mithouard utilized in their defence (Foster, 2013). Hence, Keck’s being unable to effect adequately how states ensure adherence of their respective statutes such that they align well with those of EU (Edward & Lane, 2011). This is especially in laws that seem to be in single category or conflicting despite their determination entailing similar approach. In addition, the basis of Keck encompasses relying on already argued and ascertained facts or legal verdicts (Janssens, 2013, p. 44). These include articles and cases whose core bases encompass those from other related legal documents or opinions made after prolonged arguments (Weatherill, 2013). Hence, this renders it unsatisfactory besides being unable to come up with clear distinctions between rules, which the board might be affecting in an attempt to achieve a certain goal like free circulation of merchandises among states (Craig & De Búrca, 2011). One of these argued cases that comprise it include Dasonville, which gives the initial clarity of Measures having Equivalent Effect - MEEs (Barnard, 2013, p. 74). Consequently, this deprives Keck its originality in ascertaining and giving its verdicts concerning defining rules, which it might intend to constitute (Procureur du Roi v. Dassonville, 1974). This has also complicated further by the court in extending Dasonville formula to article 35 TFEU (Barnard, 2013). For instance, in Bouhelier’s1 and Commission v. France2 cases that significantly led to remarkable alterations, which Keck as well as EU law relies on when making essential decisions regarding determining MEEs (Barnard, 2013, p. 74). This leads to other cited side rules whose originality and bases are from other legal cases whereby with time the court overrules them. This is especially when making certain determinations, which based on the case’s context the rule or opinion might not apply as necessitated hence coming up with a new approach. Therefore, these emergent opinions, rules or cases comprising some of the facts esteemed by Keck render it insufficient in defining exactly laws it stands by (Barnard, 2013). In addition, based on numerous legal studies so far conducted have cited it to be extremely controversial besides its business sense being of questionable doubt (Chalmers, Davies & Monti, 2010, p. 775). Keck emphasizes on emphasizing on observing Article 34 TFEU’s measures as advocated by Dassonville from its inception despite from then to date having undergone some alterations (Barnard, 2013, p. 74). In the context of trade, this article through its exceptions and other facts supporting it focuses only on marketing stage but not how respective corporations come up with their products (Barnard, 2013). This is in producing products whereby as a statute governing vast region compared to those of national laws bears significant loopholes, which scrupulous traders can adequately use them to the disadvantage of states’ environments. Hence, exclude the economic production of the entire process before goods reaching to their respective destination throughout the member states. This is extremely detrimental to the states because these traders will contend to be under Article 34 TFEU’s stipulations that grant them immunity to trade but not any state to demand how they produce their products except their own evident in Kramer’s case3 (Berry, Homewood & Bogusz, 2013). The other inappropriateness characterising Keck encompasses its scope in relation to Article 34 TFEU whereby the court failed to indicate with clarity list of cases or opinions, which during determining process ruled against (Horspool, Humphreys & Padfield, 2012). Some of the cases encompassed those dealing with some selling arrangements that the court cited to have lacked adequate clarity in Keck’s context, hence disregarding them (Horspool, Humphreys & Padfield, 2012, p. 311). Therefore, due to lack of cases that the ECJ overruled as well as selling arrangements that raises numerous questions than answers when arguing about Keck’s judgement, it acts as a correcting case especially in future (Foster, 2013, p. 161). According to Horspool, Humphreys and Padfield (2012), aspects considered under Article 34 TFEU and in line with Dassonville approach as marketing essentials encompasses statutes that govern the regulation of merchandises but are excluded. Therefore, because they are prima facie in Keck’s context entailed adequate and clear explanations, which the ECJ in this case either inadvertently or advertently failed to expound (Shuibhne, 2013). By ignoring these cases and other requirements made Keck inadequate in drawing clear distinctions between rules that fall in the same category. Other requirements ignored in Keck that renders inappropriate comprises that govern selling of products (Steiner, Woods, Watson & Steiner, 2012). Mainly, these requirements do not deal with goods but how, which period and market’s venue though they do not comprise the scope of Article 34 TFEU. Conversely, the court during Keck’s arbitration cited they were prima facie though under two key preconditions (Horspool, Humphreys & Padfield, 2012, p. 311). These encompassed state rules regarding selling arrangements governing all relevant traders as well as having similar impact both law and in domestic marketing (Kaczorowska, 2013). Hence, fail to present a clear definition besides being discriminative in its nature besides inappropriate. Keck’s inappropriateness is also relayed in Steiner, Woods, Watson and Steiner (2012) book citing how the ECJ failed to give clear distinctions between both static and dynamic statutes. However, ECJ contended selling arrangements ought to apply adequately as well as equally in both law and fact (Steiner, Woods, Watson & Steiner, 2012, p. 338). Based on the then issued verdict by the ECJ, he emphasized on static law would adequately satisfy the required test compared to dynamic. Consequently, this led to the proviso that was significant in ascertaining the inclination of post-Keck case law, which up to date entails major alterations to eliminate both its discrimination and inappropriateness nature (Steiner, Woods, Watson & Steiner, 2012). This is especially when defining rules that fall in one category besides giving clear descriptions coupled with backing cases that would render its decision valid. In conclusion, despite the EU laws advocating non-discriminatory rules that ensure effective and freedom of movements of goods throughout this vast region it is still ineffective especially in the application of Keck eckhout & Tridimas, 2011). This is because of numerous lists of cases and other essential facts, which ECJ during then ignored without giving any concrete description. Hence, this created significant loopholes that scrupulous traders may end up using because they have immunity of Article 34 TFEU as evident in the Keck’s case. In addition, ECJ’s ignorance of essential cases and other requirements rendered Keck unsatisfactory and discriminative, hence in appropriate in giving clear distinctions. This is especially between rules that seem to emanate from same categories. References 1974. Procureur du Roi v. Dassonville, S. A. ETS Fourcroy and S. A. Breuval et Cie, Civil Parties (Case 8/74). [pdf] Available at: [Accessed 3rd March 2014] 1977. Case 53/76. 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