The pioneering judgement in Keck1 differentiated product requirements and selling arrangements. Justified by the effect on market access, the latter was held to be outside of the ambit of Article 34 TFEU, prohibiting all measures having equivalent effect to quantitative restrictions on imports2 between Member States. This was widely interpreted in Procureur du Roi v Dassonville3 to preclude the totality of trading rules implemented by Member States that are capable of either directly, indirectly, actually or potentially, hindering intra-Community trade, as measures having equivalent effect.4 In Keck, the European Court of Justice (ECJ) aimed to clarify case law5 after Article 34 was increasingly invoked by merchants challenging national trade regulations insofar as the impact on the free movement of goods was negligible.6 However, it received much criticism for its apparent contradiction of the application of EU laws of free movement of goods, most notably the judgements in Dassonville and ‘Cassis de Dijon,’7 which followed the Treaty’s objective of a single market. “The most authoritative assault ever mounted on the reasoning in that judgement,”8 Advocate General Jacobs’ (AGJ) criticism of Keck in Leclerc-Siplec 9, will be examined throughout in accordance with the differing theories concerning the approach of Article 34. AGJs’ condemnation of Keck stems from the Court’s apparent disregard of the Treaty’s objectives of a single market.10 The formalistic approach, focusing on legal and factual equality, allows for a test of discrimination resulting in trade restrictions being tested against local conditions. This is contrary to the aims of access to the Community market in its entirety,11 which requires the abolition of all subst... ... middle of paper ... ...Access: A Concept or Slogan?”, 47 CML Rev. (2010). Peter Oliver, “Some Further Reflections on the Scope of Articles 28–30 (ex 30–36) EC” 36 Common Market Law Review. (1999) Stephen Weatherill, “After Keck: Some Thoughts on how to Clarify the Clarification”, 33 Common Market Law Review. (1996) Online Articles Felicitas Parapatits, “The influence of the (post) Keck Case Law on the Freedom to Provide Services,” Univeristy of Vienna (2012), accessed 8 November 2013. Elin Sironey, “The Limit of Article 28 EC - The Ten Year Development of Keck and Mithouard,” Faculty of Law of the University of Lund, (2003), accessed 8 November 2013.
R v International Stock Exchange of the UK and the Republic of Ireland Ltd, ex p Else (1982) Ltd and others [1993] 2 CMLR 677
Gunther, G. (1991). Constitutional Law. Twelfth Edition. New York: The Foundation Press, Inc. pp. 1154-1161.
In addition to these substantive limitations to the General Agreement on Tariffs and Trade, Rodrik states that their enforcement rule was “a joke” and that the requirements it had were “patently unenforceable” (pg. 72-74). Due to this, any essential requirements were of limited effectiveness. While majority of people considered these characteristics from the agreement to be things that needed to be corrected, Rodrik favors them, and thinks of them as positives. He indicates that these characteristics are what made the General Agreement on Tariffs and Trade “successful” to its ability “to achieve the maximum amount of trade compatible with different nations doing their own thing,” by, keeping intrusions into domestic affairs to a minimum (pg. 75). On the other hand, he argues that the World Trade Organization is trying to reach “hyperglobalization,” with the rules that it is now enforcing to the sectors that used to be excluded, and to areas like health and safety rules, subsides and intellectual property. Rodrik, states that while the General Agreement on Tariffs and Trade cases were primarily about tariffs and quotas, the World Trade Organization disputes, “reach into domestic areas that
H W R Wade ‘The Basis of Legal Sovereignty’ (1995) 172 Cambridge Law Journal 186.
Although there were numerous movements in promoting the unity of the European, but it seems to have failed. Robertson indicates the unity principle’s outcome is less than what is desired. Thereby, as Murat notes, the court will invariably grant a leeway to the state in deciding the cases namely, the ‘Margin of appreciation’. This maxim owes it genesis from a French term ‘marge d’ appreciation’ that deemed as a doctrine which gives way to a state’s discretion in their governance.
Given the sizes of the European and American economies and the amount of trade between them, it is inevitable that disputes will arise. I will focus on the continuing clash over the European ban on hormone-treated beef and the recent dispute over American steel safeguard measures. These two trade disputes represent different types and different issues within the trade relationship, although both expose weaknesses in the WTO system.
The judicial statement of Roskill LJ observed in The Albazero [1977] AC774 held plenty of arguments in modern world today. To reach an extent of agree or disagree the judicial statement, it should be critically analysed from a legal perspective:
3. Dijck P. van, and Faber, G. (eds.), Challenges to the new World Trade Organization, 299-306 1996 Kluwer Law International
... the regulatory and NTB issues of TTIP through either mutual recognition agreements (acceptance of a good or service based on a “tested-once” standard by each side) or harmonization (same standards for both EU and US), but this may not be feasible. While US Senators pressure US Trade officials to “resolve . . . unwarranted agricultural barriers as part of the FTA negotiations on both an individual and a systematic basis,” the EU Trade Representative is forced to mitigate criticisms by unequivocally stating that “no standard in Europe will be lowered because of this trade deal.” This tug-of-war between free trade and norms is described by Zaiki Laidi as “the liberalization of trade at odds with strong social, cultural, and identity issues,” and it is precisely the sustainable development norms of the EU that are being put to the test within the TTIP negotiations.
Simmonds C., ‘Paramountcy and the ECHR: a conflict resolved? [2012] Cambridge Law Journal Vol. 71 Issue 3, 498-201
Petersmann, Ernst-Ulrich. "JIEL Debate: Methodological Pluralism and its Critics in International Economic Law Research." Journal of International Economic Law 15, no. 4 (2012): 921-970.
Ward, R and Akhtar, A . (2011) English Legal System . 11 ed . New York: Oxford University Press.
O’Boyle, Michael (2011) ‘The Future of the European Court of Human Rights’, German Law Journal, 12, 10, pp. 1862-1877.
This paper was prepared for International Business Law – BA 560, taught by Professor James Vricos.