European Union Law - Gustave Dassonville - Essay Example

Running head: european union law 6th April European Union Law Introduction Article 34 TFEU has various provisions that cover on importation as well as exportation of commodities across the members of European Union. For example, it gives firms the right to import goods for commercial purposes as well as entities individuals to import goods for personal use. Additionally, it touches on issues on parallel imports of medicinal products. Despite the efforts by courts to remove non fiscal measures that hinder the free movement of goods, for example in the case of Dassonville and Cassis de Dijon, more legal problems have emerged and the only option is now to abandon these principles entirely. This paper aims at critically discussing the implication of this statement through the use of decided cases and other resources. Dassonville Dassonville also referred to as Procureur du Roi v Benoît and Gustave Dassonville was a case that took place in the European Court of Justice. Dassonville was focused at reversing the provisions of the Royal Decree and the arguments of Procureur du Roi regarding the selling of spirits in Belgium. Belgian Act of 1927 indicated that destinations of spirit’s origins are subject to the government and such destinations of origin are officially adopted1. The Royal Decree of 1934 indicates that it is prohibited on pain of penal sanctions to display, import, display for sale, or transport for the purpose of sale, or delivery, spirits that bears a designation of origin duly adopted by the government if the spirits are not accompanied by official documents that indicate the right to such destination. Notable aspect to note is that the destination of origin Scotch whisky has been adopted by the Belgian Government. The implications of these provisions are clearly depicted in Dassonville case. Gustave Dassonville, an established wholesaler based in France and Benoit his son who was the business manager situated in Belgium, imported Scotch whisky which they referred to as Johnie Walker and Vat 69. Gustave had purchased the brands from the French distributors2. In order to ensure that they are sold in Belgium and that they are in line with the Royal Decree, Gustave affixed labels that had the printed words “British Customs Certificate of Origin”. This was then followed by hand written notes of the date as well as the number of the French excise bond on the permit register. The excise bond was the official permit adopted by French as the method of accompanying brands that bearded a destination of origin. However, the French government does not require a certificate that indicates the originality of Scotch whisky. Even though the goods were imported from Belgium through the use of French documents and cleared as community goods, the Belgian Government indicated that the products did not comply with the Royal Decree 57 of 19343. As the result of the importation, the public prosecutor in Belgium initiated legal proceedings against Dassonvilles. The prosecutor indicated that the Dassonvilles committed two crimes that were against the European law. First, the prosecutor indicated that they assisted in committing forgeries and fixed labels with fraudulent intention. Secondly, the prosecution side indicated that the Dassonvilles contravened section 4 of Royal Decree by knowingly selling, displaying for sale, and transporting for the purpose of selling the whisky without being accompanied by the official and legal documents. One of the notable aspects was that it was difficult to obtain the certificates in respects of the brands since they were already in free circulation in a third country. In the Dassonville, the major question was to determine whether a provision prohibiting the import of goods that have a designation of origin where the products are not accompanied by an official document issued by the government of the country exporting the goods certifying their right to such designation constitutes a measure having an effect equivalent to a quantitative restrictions as indicated in Article 30 of the European Union treaty. Article 34 TFEU of the European law indicates that quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between European member states4. The 1974 judgment indicated that trading regulations adopted by the members which are in a position to hinder indirectly or directly or potentially, community trade are taken as measures having an effect similar to that of quantitative restrictions. One of the legal problems that Dassonville solved was the breaching of article 34 TFEU by European Union member state since it made it easier for French seller of Scotsh whisky to sell their products but in Belgium a trader selling the same Scotsh whisky is subject to restrictions that affect their ability to compete. One of the major effect of Dassonville case was ordering the members states to have certificate of authenticity that is less easily obtainable by importing agents or companies of an authentic product which has been put into free circulation in manner which is regular, member states continues to engage in legal debates on the applications of article 24. Thus the efforts by the court have not worked and the conflicts still exist among the member states. As a result, the countries within the EU have noted that the restrictions that are provided by article 34 create inappropriate business operating atmosphere. Cassis de Dijon Just like in the case of Dassonville, Cassis de Dijon was also a matter that created legal conflict among the EU member states. Cassis de Dijon, which took place in 1979 with the court indicating that regulations applying to domestic and imported that indicates an effect similar to a quantitative import regulation is unlawful restriction to free movement of goods. Rewe, a German trader, was restricted by the German authority to import a fruit cream referred to as Cassis de Dijon5. During this time, the German authority indicated that in order for a fruit liqueur to be referred as such, it must contain a minimum of 25% alcohol content6. The German government indicated that the brand that Zewe imported did not meet the standards for requirement of beer. During the Cassis de Dijon, Rewe-Zentral AG efforts was to indicate that the German authority was making it difficult for the company to undertake its business activities that included selling and importing of Cassis de Dijon. In the European trade, non-tariff barriers are mostly used by the European member states to protect domestic industries from external competition. In addition to the quotas and subsidies, trade divergences are applied by some government to create unfair advantage for the local commodities when competing with foreign goods. It is worth to note that free movement of goods is important for the collectivity of European Union. Cassis de Dijon that was built from the rulings of Dassonville case, aimed at challenging the national legislation that attempted to introduce non-tariff barriers in the European trade. Thus, the case has become one of the significant cases in European market. After bringing the case before the European Court of justice, Zewe won the case and solved gaps within the German legislation that restricted the importation of alcoholic brands. According to the 1979 ruling, the court indicated that the German authority prohibition was illegal non-tariff barrier to trade7. As a way of bringing change within the European law, the European Court of Justice indicated that Cassis de Dijon met the required standards as set by France. The court also argued that the ideal regulations that the member states adopt in their trading and production activities must be recognized by other members instead of using regulations to introduce barriers to trade. As the result of the Cassis de Dijon case as well as the recognization of mutual concept, the European Union improved its free market policies an aspect that led to greater integration. Other products that are affected by non-barrier to trade include Chocolat, Eugenban and Gerbeer. For instance, due to strict cultural adherence, it is difficult to enter German beer market despite the lifting of restriction in 1987 by European Court of Justice. Despite the principles introduced by European Court of justice in the Cassis de Dijon, EU members are still facing challenges that have made some countries to benefit at the expense of other states. For instance, the difficulties the foreign investors may face while investing in German beer market is an aspect that may make other countries to put regulations that make German traders to have difficulties while trading with other countries8. On their parts, member states have undergone high costs as they seek legal justice to remove the restrictions that makes it hard to import while it is simple for them to export to other countries9. As indicated by the Cassis de Dijon and even the European Court of justice portraying European trade regulations and principles as intimidating, they are still being applied and thus they should be abandoned entirely. One of the notable implications of the Cassis de Dijon on the European region was that it created a more free market that will result to improved regional economy as well as development of the individual countries. Conclusion Based on the provisions of article 34 TFEU it is clear that European Union aims at streamlining its market among its members. With the introduction of trade restrictions by some member states, European market has negatively been affected. Despite the efforts by European Court of Justice especially in the Dassonville and Cassis de Dijon cases to solve the problems emerging for the barriers to trade that have continuously been introduced by member states, more trading challenges are still emanating. 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