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I. Free Movement of Goods

Published online by Cambridge University Press:  17 January 2008

Karl Newman  and
Stephen Weatherill
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Extract

The European Court's efforts to locate the outer limits of Article 30's control of national measures have been discussed before in these surveys of current developments in EC law.1 The Court was tempted to use Article 30 to catch a wide range of measures that affected trade even where the rules applied in an even-handed manner to all traders. The most notable example of this expansionist trend was found in the so-called Sunday trading cases, in which Article 30 was exploited to challenge rules restricting commercial activity in England and Wales even though the rules did not put cross-border strategies at any particular disadvantage. The Court pursued an erratic course before finally ruling the laws compatible with Article 30.2 Academic comment, though nuanced in its detailed appreciation of the Court's stance, was largely convinced that Article 30 had been extended beyond both its intent and necessary function in the process of market integration.3

Type
Current Developments: European Community Law
Information
International & Comparative Law Quarterly , Volume 45 , Issue 1 , January 1996 , pp. 213 - 219
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. E.g. (1991) 40 I.C.L.Q. 215, (1992) 41 I.C.L.Q. 719, (1994) 43 I.C.L.Q. 207.

2. Case C-169/91 Stoke-on-Trent and Norwich City Councils v. B & Q judgment of 16 Dec. 1992, [1993] 1 C.M.L.R. 426.

3. E.g. Chalmers, “Free Movement of Goods within the European Community: an Unhealthy Addiction to Scotch Whisky?” (1993) 42 I.C.L.Q. 269; Wils, “The Search for the Rule in Article 30 EEC: Much Ado about Nothing?” (1993) 18 E.L.Rev. 475.

4. Joined cases C-267 and C-268/91 [1993] E.C.R. 1–6097.

5. (1995) 44 I.C.L.Q. 451.

6. E.g. Gormley, “Reasoning Renounced? The Remarkable Judgment in Keck and Mithouard” [1994] Euro.Bus.L.Rev. 63; Chalmers, “Repackaging the Internal Market—the Ramifications of the Keck judgment” (1994) 19 E.L.Rev. 385.

7. Cf. Case C-2/91 Meng judgment of 17 Nov. 1993, in which the ECJ cautiously declined an invitation to extend the use of Arts.5 and 85 in reviewing national rules.

8. Case C-292/92 judgment of 15 Dec. 1993.

9. Case C-401/92 and C-402/92 [1994] E.C.R.I–2199.

10. Case C-315/92 [1994] E.C.R.I–317.

11. E.g. (1989) 38 I.C.L.Q. 689, (1992) 41 I.C.L.Q. 719.

12. In finding the German market over-regulated, the decision compares with that in Case C-126/91 Schutzverband gegen Unwesen in der Winschaft v. Rocher GmbH judgment of 18 May 1993, examined at (1994) 43 I.C.L.Q. 207.

13. Case C-293/93 [1994] E.C.R.I–4249.

14. COM(94)533.

15. Art.7a EC.

16. Reg.3381/94 and Council Decision 94/942/CFSP (1994) O.J. L367.

17. (1993) O.J. L77/24, (1992) O.J. L395/1 respectively.

18. (1993) O.J. L74/74.

19. These trends are explored at length in my Law and Integration in the European Union (1995), esp. chap. 5.

20. Directive 92/59 (1992) O.J. L228/24, see comment at (1994) 43 I.C.L.Q. 207.

21. Case C-51/93 [1994] E.C.R.I–3879.

22. Idem, para. 18 of the judgment. Cf. text at supra n.12 on the ECJ's appreciation of consumer capability.

23. Case C-369/89 [1991] E.C.R. 1–2971. The Commission issued a communication in the light of this judgment, COM(93)532.

24. Supra n.21, at para.19 of the judgment.