Harmonisation of Technical Standards: Reculer Pour Mieux Sauter?
| Date | 01 September 1990 |
| Author | Noreen Burrows |
| Published date | 01 September 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01827.x |
Harmonisation of Technical Standards:
Reculer Pour Mieux Sauter?
Noreen
Burrows
*
This article will examine the harmonisation of technical standards in the light of the free
movement of goods rules of
the
EC Treaty and the Community’s attempts to create a single
European market by the end of
1992.
It does
so
from the perspective of the manufacturer
and distributor of goods who is faced with a confusing and conflicting array of legal and
semi-legal norms. The rules which will determine such a manufacturer’s behaviour come
from a variety of sources; they include domestic legislation, treaty rules as interpreted
by the European Court of Justice, decisions taken jointly by fellow manufacturers under
the auspices of British and European standards institutes and cognate legal rules relating
to product liability. The manufacturer will find that the world of the free movement of
goods is one in which there is conflict between the economic liberalism of the European
Court
of
Justice which is expressed in abstract legally formal decisions and the interven-
tionism of the European Commission. These two institutions, whilst perhaps sharing the
ultimate desire to create a common market, approach the free movement
of
goods rules
from entirely different perspectives.
For the manufacturer who wishes to sell goods in the single market the rules seem fairly
clear. Article
30
EEC prohibits, amongst other things, quantitative restrictions on imports
and all measures having an equivalent effect.
In
the context of this paper, the key prohibition
is that on measures having equivalent effect to quantitative restrictions. As Steiner says
‘[The prohibition] has been interpreted very generously by both the Commission and the
Court, to include not merely overtly protective measures or measures applicable to imports
or exports (“distinctly applicable” measures) but measures applicable to imports
(or
exports)
and domestic goods alike (“indistinctly applicable” measures), often introduced (seemingly)
for the most worthy purpose.’’ The Court
of
Justice, in its famous
Cussis
de
Dijon
judgment, introduced a test to identify what national measures were permissible under
Article
30.2
In this case, the Court held that certain national measures will not breach
Article
30
if they are necessary in order to satisfy ‘mandatory requirements’ relating in
particular to the effectiveness of fiscal supervision, the protection of public health, the
fairness of commercial transactions and the defence of the consumer. In the case of
indistinctly applicable measures, courts may apply a rule of reason to Article
30,
whereas
distinctly applicable measures will normally be in breach of Article
30,
but may be justified
under Article
36.
Cassis
de
Dijon
is also authority for the proposition that goods lawfully produced and
marketed in one member state should be permitted to enter another member state. This
gives rise to the presumption that goods which have been lawfully marketed in another
State will comply with the ‘mandatory requirements’ of the importing State. This is a
difficult presumption to rebut, given the tests which the Court demands, which are that
the State must prove that national measures must be necessary, objectively justified and
non-discriminatory
,
although the Court does not apply all these tests simultaneously
.3
*Senior Lecturer
in
European Law, University of Glasgow.
A
version of this paper was first presented at
the W.G. Hart Legal Workshop at the University of London in July 1989.
1
2
3
Steiner,
Textbook on EEC Law
(London: Blackstone Press Ltd, 1988) p 63.
Case 120178
Rewe-Zentral AC
v
Bundesmonopolverwalrung fur Branntwein
[1979] ECR 649,
[
19791
3 CMLR 494.
For an excellent analysis on the limitations on the states’ discretion see Sedemund, ‘Statement
on
the
concept of the free movement of goods and the reservation for national action under Article 36 EEC’
in Schwarze (ed),
Discretionary Powers
of
the Member States in the Field
of
Economic Policies and their
Limits under the EEC Treaty
(Baden-Baden: Nomos Verlag, 1988).
597
The Modem Law Review
53:5 September
1990
0026-7961
To continue reading
Request your trial