‘Re‐reading’ Dassonville: Meaning and understanding in the history of European law

• Date: 01 November 2018
• DOI: http://doi.org/10.1111/eulj.12290
• Published date: 01 November 2018

ORIGINAL ARTICLE

‘Re‐reading’Dassonville: Meaning and

understanding in the history of European law

Robert Schütze*

Abstract

There are few ‘mythical’judgments that every student of European integration has read or ought to

have read. Dassonville is one of these judgments. The Court here makes one of its ‘most famous

pronouncement[s] ever’; and yet very little historical research on where the Dassonville formula came

from and what it was intended to mean in 1974 has yet been undertaken. The conventional wisdom

holds that the Court offered a hyper‐liberalist definition of the European internal market, which

radically dissociated itself from the conceptual shackles accepted in modern international trade law.

According to this view, Dassonville represents the substantive law equivalent of Van Gend en Loos. This

traditional view, it will be argued, is simply not borne out by the historical facts. A contextual interpre-

tation indeed shows a very different meaning of Dassonville; and a closer author‐centric analysis

reveals a very different understanding of the Dassonville formula in its historical context.

1|INTRODUCTION

There are few ‘mythical’judgments that every serious student of European integration has read or ought to have

read.

1

Journal articles will analyse them, academic textbooks will sanctify them; and, sometimes, broader theoretical

superstructures will arise from them.

2

The Dassonville judgment of the European Court of Justice is one such judgment. It is, quantitatively, the second

most‐cited case in the history of European Union law

3

; and, qualitatively, it is—for a great number of scholars—the

*

Durham University and College of Europe. Among the many people to thank, I am particularly grateful to Vilmos Budovari, Brigitte

Leucht, Agustín Menéndez and Dieter Schlenker. The paper is warmly dedicated to Quentin Skinner, whose intellectual brilliance and

personal modesty represent the best of academic and republican virtues.

1

For a qualitative selection of ‘mythical’judgments, see M. Poiares Maduro and L. Azoulai (eds.), The Past and Future of EU Law: The

Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart , 2010); and from a quantitative ‘network’perspective, see

M. Derlén and J. Lindholm, ‘Goodbye van Gend en Loos, Hello Bosman? Using Network Analysis to Measure the Importance of Indi-

vidual CJEU Judgments’, (2014) 20 European Law Journal, 667.

2

For example, Professor Weiler's ‘convergence thesis’with regard to international economic law and European internal market law

(cf. J. H.H. Weiler, ‘Epilogue: Towards a Common Law of International Trade’, in J.H.H. Weiler (ed.), The EU, The WTO and the NAFTA:

Toward a Common Law of International Trade (Oxford University Press, 2000), 201) is built on a particular reading of Dass onville;while

Professor Maduro's We the Court: The European Court of Justice and the European Economic Constitution (Hart, 1998) is, in my view, a

theoretical elaboration of the Court's Keck judgment.

3

Derlén and Lindholm, above, n. 1, 673.

DOI: 10.1111/eulj.12290

376 © 2018 John Wiley & Sons Ltd. Eur Law J. 2018;24:376–407.wileyonlinelibrary.com/journal/eulj

most important judgment ever decided on the internal market.

4

The meaning of the judgment is thereby often con-

densed into a famous ‘formula' that has come to define which national laws constitute illegal barriers to intra‐Union

trade. The ‘Dassonville formula' has here come to delineate the scope of Article 34 TFEU, according to which all

‘[q]uantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member

States’, by famously identifying the notion of a ‘measure having equivalent effect to a quantitative restriction’

(MEEQR) with ‘[a]ll trading rules enacted by Member States which are capable of hindering, directly or indirectly,

actually or potentially, intra‐[Union] trade’.

5

But what was this ‘most famous pronouncement ever’supposed to mean?

6

The conventional reading within

European law scholarship has come to believe that the Court offered a hyper‐liberalist interpretation of the

European internal market—an interpretation that radically dissociated itself from the conceptual shackles accepted

in modern international trade law. According to this view, Dassonville represents the substantive law equivalent

of Van Gend en Loos, which had—a decade earlier—formally cut the umbilical cord with the old legal order of

international law.

7

The best‐known popularisation of this ‘orthodox’view has come from the pen of Joseph Weiler.

8

For this leading

philosopher of European law, the Dassonville Court was inspired by ‘a certain Jacobean conception of the common

market‐place’—whatever that means—that ‘explicitly or implicitly reject[ed] the GATT philosophy of trying to find

an uneasy balance between transnational free trade and broad choice of national social and economic options

exercised by states enjoying wide regulatory autonomy, which really has as its implicit ideal type a transnational mar-

ket‐place which is identical to a national market‐place’.

9

The view that Dassonville was intended to introduce a ‘national’

market model according to which all trade restrictions—be they distinctly or indistinctly applicable to imports—fall

within the scope of Article 34 can also be found in the standard textbooks. In Catherine Barnard's well‐known manual

on the internal market, we thus read that Dassonville ‘provide[d] individual traders with a vehicle to challenge any

national rule which—even potentially and indirectly—stands in their way’; and that such a revolutionary solution

was justified because ‘[l]ooked at in its historical context, Dassonville was an effective tool to cull the dead wood

of centuries of accumulated legislation’.

10

And for the author of the first theoretical monograph on the constitutional

structures of the internal market, the meaning of the Dassonville judgment is equally clear:

In its landmark Dassonville judgment of 1974, the ECJ made clear that also indistinctly applicable national

measures were prohibited. The fact that it was sufficient for a measure to be ‘captured’by Article 34 for it

to be ‘capable of hindering directly or indirectly, actually or potentially, intra‐[Union] trade’, could

potentially subject all market regulations to a strict review under the free movement of goods, since

they all have by their very nature an impact on trade. In other words, such [a] test did not require a

national measure to be protectionist or to discriminate against foreign products to be subject to review

under Article 34.

11

4

Ibid., 678.

5

Case 8/74, Procureur du Roi v. Benoît and Gustave Dassonville, [1974] ECR 837, para. 5.

6

Weiler, above, n. 2, 205.

7

Case 26/62, NV Algemene Transport‐en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Reven ue Administration, [1963]

ECR 1.

8

Weiler, above, n. 2. This essay is an almost perfect replica of his earlier ‘The Constitution of the Common Market Place: Text and

Context in the Evolution of the Free Movement of Goods’, in P.Craig and G. de Búrca (eds.), The Evolution of European Law (Oxfor d

University Press, 1999), 349.

9

Weiler, above,n. 2, 215 (emphasis added). On theidea of various market models, includingthe ‘national’market model, see R. Schütze,

‘Introduction’,inFrom International to Federal Market: The ChangingStructure of European Law (Oxford UniversityPress, 2017).

10

C. Barnard, The Substantive Law of the EU: The Four Freedoms (Oxford University Press, 2016), 74 (emphasis added).

11

M. Maduro, ‘Revisiting the Free Movement of Goods in a Comparative Perspective’, in Court of Justice of the European Union, The

Court of Justice and the Construction of Europe: Analysis and Perspectives on Sixty Years of Case Law (Asser, 2013), 485, at 489–490

(emphasis added).

SCHÜTZE 377

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

12

; 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 [34]). 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.

13

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

14

; 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.

15

For the purposes of the present study, I will therefore use a methodological

12

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

Court itself.’

13

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?

14

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.

15

Ibid., Chapter 5 and Conclusion.

378 SCHÜTZE