European

Law To what extent has the ECJ case law on Article 28 contributed to the
achievement of a single market in goods in the European Union?

The objective of Article 28 is to prevent Member States from engaging in strategies that have the
effect of restricting the free flow of goods between Member States. Article 28 states that
quantitative restrictions on imports and all measures having equivalent effect shall be prohibited
between member states. The prohibition contained in Article 28 applies to measures, which have
been adopted by the State as opposed to those taken by private parties.
Article 28 is one of the Treaty articles concerning the integration of national markets for goods.
The Communitys efforts to integrate national markets are basically attempts to limit the influence
of national governments on production and consumption activities throughout the Community.
One way that the Commission has sought to deal with trade rules that differ between Member
States is for these rules to be harmonized through Commission legislative initiatives.
The ECJ has construed Article 28 as being breached not only when there has been discrimination
in the way in which a State treats its own goods and those coming from outside, but also when the
same rule applies to both domestic goods and imports in circumstances where the relevant rule
can inhibit the free flow of goods across borders within the community. The fact that an
indistinctly applicable rule, that is rules which apply to all goods irrespective of their origin, can be
caught by Article 28 constituted a major contribution by the ECJ to the attainment of a real single
market for goods. Therefore, in order to invoke or rely on Article 28 discrimination is a sufficient
condition although not a necessary condition.
There are numerous examples of instances where the Court has struck down national rules, which
directly or indirectly discriminate between domestic and imported goods. One common scenario is
where a State applies discriminatory rules in the form of import or export restrictions. Measures
such as import or export licences are caught by Article 28. The ECJ has always been particularly
harsh on such measures. So, too, are provisions which subject imported goods to requirements,
which are not imposed on domestic products.
The Courts approach has been to hold that national rules cannot hinder the free movement of
goods unless they could be justified on certain specific grounds such as consumer protection.
Article 28 will catch quantitative restrictions and all measures which have an equivalent effect
(MEQR). In Case 8/74 Procureur du Roi v. Dassonville , the ECJ signaled that it will take a very
broad view of measures, which may hinder the free flow of goods within the Community. The

crucial element in proving the existence of a MEQR is its effect: a discriminatory intent is not
required. However, the ECJ indicated in the above case that reasonable restraints may not be
caught by the prohibition in Article 28. The impact of Article 28 is that it renders inapplicable
national regulatory measures on a particular subject.
Another form of discrimination which is caught by Article 28 is that in which a State promotes or
favours domestic products to the detriment of competing imports. This can occur in a number of
different ways. The most obvious form which this type of discrimination can assume is where a
State engages in a campaign to promote the purchase of domestic as opposed to imported goods.
A clear example of this is seen in Case 249/81, Commission v. Ireland . Here, the Irish Government
sought to promote sales of Irish goods with the objective of increasing consumer spending from
imports to domestic products.
The ECJs approach was to look at the substance of the provision not its form. The ECJ held that
the campaign implemented by the Irish government reflected the governments intention to
substitute domestic products for imported products on the Irish market and thereby check the
flow of imports from other Member States. This clearly constituted a breach of Article 28 and the
ECJ expressed this in Paragraph 28 of the judgment. It stated that measures adopted which
although not binding but which have the effect of influencing the conduct of consumers and
traders in that State are capable of frustrating the aims of the Community. The ECJs reasoning in
this case provides an excellent example of its more general strategy under Article 28.
Another form of indirect discrimination which has been caught by Article 28 is where a State has
rules on the origin-making of certain goods, or inhibit the penetration of the market by imports, is
equally apparent in this type of case, even though the discriminatory effect on imports, is equally
apparent in this type of case, even though the discriminatory effect on imports is more indirect.
There are diverse ways in which a State can treat imported goods less favourably than domestic
products. Price fixing regulations imposed by a State may have this effect by rendering it more
difficult for importers to market their goods within the territory of the State which is imposing the
restrictions. If the price fixing is discriminatory it is clearly caught by Article 28. Thus in Case
181/82, Roussel Labaratoria BV v. The State of The Netherlands , the ECJ held that maximum
selling prices for certain drugs which were fixed according to different criteria for domestic and
imported goods were discriminatory and infringed this Article. However, the Article can catch
pricing rules even where they are not, on their face discriminatory.

If trade rules are found to be discriminatory, that is measures which is caught by Article 28, then
they can only be saved through Article 30 which provides that the provisions of Article 28 shall
not preclude prohibitions or restrictions on imports, exports or goods in transit justified on
grounds of public morality, public policy, or public security; the protection of health and life of
humans, animals or plants; the protection of national treasures possessing artistic, historical or
archaeological value; or the protection of industrial and commercial property. A State is not able
to raise possible justifications, which do not appear within Article 30, even if they are to be found
in the list, which may be invoked in the case of indistinctly applicable measures.
Article 28 has made a notable contribution to the creation of a single market. The removal of
discriminatory trade barriers is undoubtedly a necessary condition for the attainment of single
market integration. It is not however sufficient. There are many rules which do not discriminate as
such between goods but which nevertheless can create real barriers to the passage of products
between Member States. The removal of discriminatory trade barriers is undoubtedly a necessary
condition for the attainment of single-market integration. It is not, however, dependent upon the
country of origin, but which nevertheless can create real barriers to the passage of products
between Member States.
The courts ruling in Case 120/78, Rewe-Zentrale Agv. Bundesmonopolverwaltung fur Branntwein ,
affirms and develops the Dassonville judgement in the sense of making it clear that Article 28 can
indeed apply to national rules which do not discriminate against imported products as such, but
which inhibit trade nonetheless merely because they are different from the trade rules which
apply in the country of origin. The effect of the judgment is de-regulation, in the sense of
rendering inapplicable trade rules which prevent goods lawfully marketed in one State from being
imported into another State. The presumption is that once goods have been lawfully marketed in
one Member State, they should be admitted into any other State without restriction.
The ECJs judgement in Cassis was, in part, a response too the difficulties faced by the Commission
in securing acceptance by the Member States of harmonization measures. This difficulty was in
partly due to the technically complex nature of many harmonization measures, which might
therefore not prove easy to draft; it was in part because the Member States might not readily
reach agreement on the substantive content of a proposed harmonization measure; and it was in
part a result of the fact that harmonization measures, even if they were passed, would result to
some degree, in the standardization of the rules applicable to an area, with the result that national

diversity might be stifled or lost, being replaced by one Community concept of beer, cheese,
sausage and the like.

Cassis highlighted the willingness of the ECJ to extend what is now Article 28 to catch indistinctly
applicable rules that inhibited trade in some manner. The difficulty is that all rules that concern
trade directly or indirectly could be said to affect the free movement of goods in various ways.
In the above sense, the Cassis judgment had the advantageous consequence of fostering single
market integration by breaking down barriers to trade which resulted from the existence of
indistinctly applicable national trade rules and obviating the need for specifically Community
Harmonization provisions. The Cassis case involves dual-burden rules. Dual-Burden arises where
State A imposes certain rules on the content of goods, and these rules are applied to goods
imported from State B, even though the goods produced in State B would already have had to
comply with the relevant trade rules from that State. The impact of Cassis is to render such rules
incompatible with Article 28 unless they can be saved by one of the mandatory requirements. The
rule is hence prima facie subject to Article 28.
Equal burden rules are those applying to all goods, irrespective of origin, which regulate trade in
some manner, which are not designed to be perfectionist, which may have an impact on the
overall volume of trade, but which have no greater impact in this respect on imports than they do
on domestic products. These are generally outside the ambit of Article 28.
In Cases 60 and 61/84, Cinetheque SA v. Federation Nationale des Cinemas Francais , the court
defined the national provision in that case as being prima facie within Article 28, but it might be
regarded as lawful if there was an objective justification for it which was acceptable with regard to
Community Law, and provided also that the method of attaining the objective was proportionate.
This case provides a good illustration of problems that can be posed by equal-burden rules.
The effect of Article 28 is creating a sort of negative regulation. Even if one does agree that certain
national trade rules should be regarded as incompatible with the Treaty, this species of negative
regulation may still require supplementation with more positive regulation, which can only be
produced through Community Legislative action. There is little doubt that the decisions of the ECJ
in this area have made a significant contribution to the effective realization of a single market. The
courts jurisprudence has consistently looked behind the form of a disputed measure to its
substance, and the ECJ has interpreted the relevant Articles in the manner best designed to ensure
that the Treaty objectives are achieved.



BIBLIOGRAPHY
Burrows, F., Free Movement in European Community Law, Oxford University Press, 1987
Craig, P. and De Burca, EU Law Text and Materials, Oxford University Press 3rd edition, 2003
Gormley,L.W., Prohibiting Restrictions on Trade within the EEC (Elsevier/North Holland, 1985)
Green, N., Hartley, T.C., and Usher,J.A., The legal Foundations of the Single European Market
Oxford University Press, 1991)
Oliver, P., Free Movement of Goods in the EC, Sweet and Maxwell, 3rd edition, 1996
WORD COUNT INCLUDING FOOTNOTES AND BIBLIOGRAPHY: 1,949 WORDS