Hardly ever was there so much agreement among European law scholars; and it is therefore hardly surprising
that political scientists, working on the internal market, have come to devotedly embrace the orthodox legal interpre-
tation. In the most outstanding treatment of judicial politics in the context of Article 34, the conventional legal inter-
pretation is thus devotedly accepted—despite running counter to its own internal logic
; and in one of the most
recent presentations of the standard political science narrative we read:
[L]awyers know that the real radical breakthrough came in 1972 [sic] with Dassonville,in which the court
had to decide once again what was meant by the Treaty of Rome's summary statement, ‘Quantitative
restrictions on imports and all measures having equivalent effect shall, without prejudice to the
following provisions, be prohibited between Member States’(Article ). At the time, it boldly struck
down a Belgian provision (requiring that imported goods bearing a designation of origin be accompanied
by a certificate of origin) with a sweeping approach: ‘all measures with an equivalent effect to quotas’
[sic] were to be struck down! This was already and much more radical than Cassis in terms of result, an
obligation of recognition. But it did not enunciate mutual recognition, and was in fact set aside as too
bold. In this sense, Cassis was not a continuation but a break from Dassonville, which sought to impose
an obstacles‐based approach to national regulation, whereby all national rules are potentially subject to
an assessment of illegality.
But is that really the meaning of Dassonville? Ought the ‘text’of the famous ‘formula' be taken at face value;
or, must the judgment be understood in its historical context; and if so, what can the historical context tell us
about the original meaning of the judgment? Was the radical thought of prohibiting all state barriers that some-
how affected external or internal trade judicially conceivable at the time of Dassonville; or is this historical
foreshortening at its worst? This article indeed wishes to provide a counter‐interpretation to the orthodox reading
of Dassonville in the legal and political science literature. It will argue that the traditional interpretation is utterly
dissociated from the historical and jurisprudential context of the case; and that the original meaning of the
Dassonville formula can only be understood against the background of the Court's early case law on the status
of third‐country goods in the EU internal market and its judicial treatment of parallel import restrictions in the
context of EU competition law.
The article's brief ‘re‐reading’of Dassonville must necessarily omit much historical background
; and due to its
limited scope, it also cannot completely set out the broader philosophical ‘framework’so as to explain how Dassonville
came to mean what it means today.
For the purposes of the present study, I will therefore use a methodological
K.J. Alter and S. Meunier‐Aitsahalia, ‘Judicial Politics in the European Community: European Integration and the Pathbreaking
Cassis de Dijon Decision’, (1994) 26 Comparative Political Studies, 535, 540: ‘Instead[!], legal scholars point to the landmark
Dassonville (1974) ruling, which established a legal basis for challenging the validity of national laws that create nontariff barriers.
To the extent that the Cassis decision ruled invalid a national law on the basis that it created a nontariff barrier, it was a straight
application of the jurisprudence established in the Dassonville decision. In fact, rather than moving beyond the Dassonville
decision, the legal innovation of the Cassis verdict, the rule of reason, actually softened the Court's position regarding nontariff
barriers. In extending the rights of the member states to maintain all reasonable national policies, which had the effect of creating
nontariff barriers, the Court seemingly opened a huge loophole, albeit a loophole which could be controlled exclusively by the
K. Nicolaïdis, ‘The Cassis Legacy: Kir, Banks, Plumbers, Drugs, Criminals and Refugees’, in F. Nicola and B. Davies, EU Law Stories
(Cambridge University Press, 2017), 278 at 281 (emphasis added). Not only is the year of Dassonville wrong; the author quotes a pas-
sage that cannot be found in the Dassonville judgment. Alas, if political scientists—rightly—chastise lawyers for not reading enough
non‐legal materials, can we lawyers not equally complain if political scientists are unable to closely read (if they do read them at
all) the fundamental judgments that they go on to write a great deal about?
For an in‐depth discussion here, see R. Schütze, Framing Dassonville: Text and Context in European Law (Cambridge University Press,
in preparation), Chapters 1 and 2.
Ibid., Chapter 5 and Conclusion.