Article 28 (ex-30) of the EC Treaty is one of the major principles governing the achievement in establishing the common market. It lays out a strong principle that imposes quantitative restrictions on imports and that all measures having equivalent effect will be prohibited between member states. The concept of measures having equivalent effect, given by the Treaty, has been sharpened in the ?Commissions explanatory Directive 70/50'.
According to some academics, it also gave the commission an opportunity to amplify the meaning of Article 28, but one could argue that widening such a legal notion equals the widening of its nonexistent scope. The publication of the Directive raised a strong academic debate owing to the fact that the clues given by the Directive were not sharp enough to interpret the words "measures having equivalent effect". Some authors tried to define the notion following three paths that are summed up by J. Rinze . Firstly, it was important to define the term "measure having equivalent effect" in the light of the purpose of quantitative restrictions which aims at protecting domestic production against import. The second interpretation throws light on the effects of the former which adopts measures that favors domestic products over imports. And lastly the focus is on measures of any kind restricting the freedom to import in any other member state.
[...] Firstly it could be defined the term “measure having equivalent effect” in the light of the purpose of quantitative restrictions as to mean all measures which were intended to protect domestic production against import”; then a second interpretation could be given in the light of the effects as to mean measures of any kind favoring domestic products over import”; and thirdly still focusing on the effects as to mean” all measures of any kind restricting the freedom to import in any other Member State”. It was then fairly clear that the examples given by the Commission in its Directive were not explicit enough. The ECJ had no choice but setting out its own definition. [...]
[...] Critically evaluate the impact upon EC jurisprudence and legislation of the judgment of the European Court of Justice in REWE Zentral AG Bundesmonopolverwaltung für Branntwein “Cassis de Dijon” Article 28 (ex-30) of the EC Treaty is one of the major principles concerning the achievement of the common market. It states a strong principle setting out that ‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States'. The concept of Measures having equivalent effect given by the Treaty has been sharpened in the Commission's explanatory Directive 70/50. [...]
[...] Although the German authorities argued that there was no objection to the importation of the product, the case reached the ECJ for an assessment of the compatibility of the German norms with Article 28 of the EC Treaty. It is commonly accepted that in the latter case the ECJ ruled under Article 28 EC pronouncing four different principles of law. Indeed for different legal fields were reshaped by the rulings: firstly, the Court ruled under the Dassonville formula that laid down a general prohibition for the obstacles to the import of goods, in this case for those ‘lawfully produced and marketed in one Member State' that might be resalable in any other Member State; secondly, it provided limits for the Dassonville formula concerning the exceptions to Article 28 with the introduction of the notion of mandatory requirements; then, the Court also laid down limits of Article 28 EC with the introduction of the necessity and proportionality principles; and finally, stated that there cannot be national law where European law sets out a comprehensive set of rules. [...]
[...] Its first general definition of the measures having equivalent effect was given in the Dassonville case: trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade”. The ECJ had followed the wider definition proposed by the doctrine for the good of the integration dynamic: any measures could fall under the principle displayed by the Treaty. On the other hand the ECJ had found a general definition allowing a unified application of Article 28 EC. [...]
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