1

CONTENTS

INTRODUCTION
SOURCES OF THE EUROPEAN UNION LAW

INSTITUTIONS OF THE EUROPEAN UNION

ABOUT THIS ESSAY

THE EUROPEAN COURT OF JUSTICE

BRIEF HISTORY OF THE EVOLUTION OF THE EUROPEAN UNION

TRADE LAW
THE EUROPEAN COAL AND STEEL COMMUNITY TREATY (1952)

THE TREATY OF ROME ESTABLISHING THE EUROPEAN ACONOMIC COMMUNITY (EEC) OF 1957

FREE MOVEMENT OF GOODS

SCOPE

THE COURTS CASE LAWS AND THE LAWS ON FREE MOVEMENT OF GOODS

CHARGES HAVING EQUIVALENT EFFECT

DUTIES AND CHARGES HAVING EQUIVALENT EFFECT

EXCEPTIONS TO MEASURES HAVING EQUIVALENT EFFECT TO QUANTITATIVE RESTRICTIONS

MANDATORY REQUIREMENTS EMENETING FROM CASIS DE DIJON

CASIS DE DIJON

COMPETITION LAW

THE COURTS (OVERVIEW)

COURTS AND POLITICS

THE COURTS AND COMPETITION LAW

CRITICSMS ON THE COURTS

CONCLUSION
2

INTRODUCTION

The idea behind the European integration is to bring peace amongst European
continents1, which used to war against each other and to stop potential wars
after the 2nd world war. This pursuit for the European integration could be
delineated to 1306.The history of the European Union is synonymous with many
failure, changes and stages over the years. There are three classes of sources of
law namely;

PRIMARY SOURCES

The primary sources are the Treaties establishing the Community2 and Treaties
entered into by the European community with other states3. These sources are
the ultimate sources of law and prevail overall other sources.

SECONDARY SOURCES

The secondary sources are regulations, directives, decisions, recommendations

and opinions4 [Article 288 TFEU (Article 249 EC)] the two last sources have no
legal binding force.

TERTIARY OR RESIDUAL SOURCES

There are quite a number of tertiary sources of the law5 .These sources do not
derive their authority from the treaty like the other classes, rather they are
predicated on the legal philosophy or jurisprudence of the European court6.The
case laws of the ECJ is one of the Tertiary sources and we shall be looking at the
subject further in this assay for the purpose of this work.

Under Article4 (7) EC.1 the following institutions are set up to carry out the
obligations of the community.

THE COUNCIL OF THE EUROPEAN UNION OR COUNCIL OF MINISTERS7

1
GORBACHER, M.PERE STROIKA (1987, HARPER COLLINS, LONDON) 197-198: Defined
Europe to be a territorial entity which stretches from the Atlantic in the west to the Urals
in the East.; DAMIAN CHALMERS, EUROPEAN UNION LAW, (Vol .1) p.1,: Expressed Europe
to come from a Phoenician woman called Europa who was seduced by the Greek god
(zeus), to come from Lebanon to Crete.
2
JOANNE COLES, LAW OF THE EUROPEAN UNION (Fifth Ed.)p.68; Primary sources are
those establishing the community as supplemented or amended by other treaties and
acts.
3
Ibid.p69.The European community has the capacity to enter into international
agreements with third States, or groups of States, as well as with certain types of
international organisations.
4
KAREN DAVIS, UNDERSTANDING EUROPEAN UNION LAW,p.36.
5
Ibid.p.68: Tertiary sources of law include, I) Acts adopted by the representatives of the
Government of the member states meeting in the council, ii) the case law of the ECJ, iii)
national laws of the member states, iv) general principles of law, and v) Principles of
public International law.
6
Ibid.
7
The council is made up of foreign ministers from the member states. DAMIAN
CHALMERS, EUROPEAN UNION LAW (Dartmouth) Vol.1, p.101.
3

The council is responsible for making EU laws and shares this power with the
Parliament. Its membership changes depending on subject deliberated on8.

THE EUROPEAN COUNCIL

This council is a collection of Heads of Government of the member states and the
president of the commission9.

THE EUROPEAN PARLIAMENT

The parliament is the elected body and intermediary of the EU’s citizens through
which the right and interests of the citizens are exercised10.

THE COMMISSION

The commission is constituted by a commissioner from each member state and

they are answerable to the Parliament11.

There are other institutions and they include: The court of justice (discussed
below), the Court of Auditors, European Economic and social Committee,
Committee of the Regions, European Investment Bank, and European Central
Bank12. For the purpose of this essay we shall concentrate on THE EUROPEAN
COURT OF JUSTICE (herein after referred as the ECJ or the COURTS) and how the
ECJ has influenced the development of trade laws of the European Union (here
after referred to as “EU”, or “Member States”)13. It is important to note that the
quest for a single European market14 is associated with changes and that, we
demonstrated in this essay.

ABOUT THIS ESSAY

Concentration shall be, throughout this essay on the ECJ and EU trade law but
not limited to trade law but also circumstances which the ECJ indirectly made
impact on the EU trade laws. This makes it important to look at the evolution of
the trade law as it concerns the Courts and the four basic concepts of freedom
(particularly free movement of goods) and case laws on free movement of goods
in relation with the courts again but under the EC treaty (it must be noted that
8
On the powers, duties and functions of the council, see; ALEX WARLEIGH-LACK, THE
BASICS EUROPEAN UNION (Second edition) p.41-50.
9
On the activities of the European council see; EIGHT GENERAL REPORT ON THE
ACTIVITIES OF THE COMMUNITIES (1974, OOPEC, LUXEMBOURG) 297; TROY
JOHNSONSTON, M. The European council, Gateway keeper of the European Community.
10
For greater details see DAMIAN CHALMERS,EUROPEAN UNION LAW(Vol 1) p.116-
135;Adequate consultation of the parliament in legislative process is an essential formal
requirement ,see Case 417/93 Parliament v. Council ECR 1-1185,paragraph 9.; also T.C
HARTLEY, THE FOUNDATIONS OF EUROPEAN COMMUNITY LAW (SIXTH EDITION) p.26-48.
11
For further reading on the European Commission see MICHELLE CINI, THE EUROPEAN
COMMISSION: Leadership, Organisation, and Culture in the EU administration, Chap.1.
12
TANJA .A. BORZEL, RACHEL .A. CICHOWSKI, THE STATE OF THE EUROPEAN UNION:
LAW,POLITICS, AND SOCIETY,p.322.
13
Ibid.
14
Ibid.
4

this essay thus not reflect the present changes as to citations of the
treaties).discussing about the courts and the development of European trade
law, we shall also analyse the Famous Casis case(below) which gave rise to
mutual recognition in the EU.

After exhausting the above faces of development, there were still some short
falls to European Union single market which Competition law was introduced to
extinguish. We shall be looking at Competition law and the role the courts played
in its development.

Finally we take an overview of the courts critically with the use of case laws and
reach a conclusion.

THE EUROPEAN COURT OF JUSTICE

In retrospect the European court of justice is one of the institutions created
under the ECSC in 1952. The court was instituted with 9 judges to interpret the
provisions of the treaty and to ensure proper judicial compliance.

The Court of Justice is the most important judicial mechanism and it sit in
Luxembourg15. Treaty of the European Union, Article 220(ex 164) EC Obligates
the European courts of justice16to ensure that the law is observed in the
application and interpretation of the Treaty. The treaty further empowers the
court with respect to suits of the commission or member state, to determine if a
member state has complied with the Treaty; to review the legality of certain
community acts or omissions; to make references to the national courts; and to
preside over claims of damages against the community or its servants in the
cause of duty17.

Under Articles 251-281 TFEU and Article 19 TEU the composition of the Courts18
and the jurisdiction of the courts is set out respectively. Basically under the

15
For further reading on the Courts and their composition see JOANNE COLES, Law of the
European Union(fifth edition Old Bailey Press)p.53-62
16
Taylor H., The case law of the European court of Justice has had a far greater impact on
the development of European Community Law than any of the various treaties. 2007,
Student Law Journal.
17
ANTHONY ARNULL, The European Union and Its Court of Justice (Oxford EC Law Library)
p.21; See Article 226(169),227(170),230(173),232(175),234-237(177-180),300(228)
ECT ,with respect to council regulations (Article 238(181)ECT and agreements amongst
member states Article 239 (182) EC treaty 1992.also on the role of Judges and the
Advocate general under the EC Treaty, see also SIONAIDH DOUGLAS-SCOTT,
CONSTITUTIONAL LAW OF THE EUROPEAN UNION. p.200.
18
The court of Justice (CJ), The General Courts (GC), and the Civil Service Tribunal. The
three courts all sit in Luxembourg .Appeals are heard from the GC to the CJ (the highest
Court) and Judges are elected mutually from Member States.
5

European Union, the role the court plays is to make sure proper interpretation
and application of the treaty in accordance with the Law.

It is therefore the duty of the courts to interpret the Treaty. As T. HARTLEY,

observed “One feature of the court is that there is no appeal from its
judgements. In most cases it may be regarded as a court of first and last resort”
Albeit the the courts hears appeals from the court of First Instance.19

From the inherent powers of the European courts traced back to the evolution of
treaties to the present position of the law, to give interpretations to the treaty, to
make references to the national courts (and all its jurisdiction outlined above) we
will be looking at the effect of this duty and powers of the Court on the
development of the European trade laws.

From the points made above, the court of justice is not part of principal
institutions of the EU and its case laws only come in as the tertiary sources of
law unlike legislations of the council and commissions in form of directives,
decisions, recommendations, opinions or regulations, which is effective on all
member states or within their national law as the case may be.

Irrespective of all these laid down sources of law, as far as the EU is concerned
can the role of the court of justice as a CATALYST in the development of the
European trade law underestimated? Answering this question we analysed
below, the impact of activities of the Courts with the important phases of
developments in EU trade law.

The ECJ case laws have established some important principles in the EU
(frequently through preliminary references).

SUPREMACY

The principle of primacy of community laws over domestic laws of member

states was established by the ECJ in 1964 in Costa v. ENEL20. Also in international
Handelsgesellschaft21.The Court therefore took the duty to protect and enforce
the EC laws seriously and the responsibility of giving effect to the community
legal order to integrate EC Law with the national legal orders seeing the
reluctance on the parts of national judges and politicians22.

19
T.C HARTLEY, The Foundations of European Community Law (sixth edition)p. 53
20
Case 6/64 Costa v. ENEL (1964)ECR 585.
21
Case 11/70 Internationale Handelsgesellschaft mbH v. Eintuhr and vorratsselle fur
Getreide und Futtermittel [1970]ECR 1125.
22
ADREA OTT and KIRSTYN INGLIS, Handbook on European Enlargement A Commentary
On The Enlargment Process,(TMC ASSER PRESS)p.17.
6

BRIEF HISTORY ON THE EVOLUTION

OF THE TRADE LAW

The European Coal and Steel Community Treaty (1952)

Is one of the oldest founding treaties of the European community23 towards a

supranatural Europe. By this Treaty came a common market in production of
coal and steel amongst member states. to provide effective remedies to
damages caused by its institutions in the performance of their functions the
treaty provides for Non- contractual liability remedies in form of indemnity
actions24.But the provisions of the Article was not couched to be explicit in its
wording it was therefore the duty of the courts of justice (one of the bodies
created by the treaty) to define and implement the actual intentions of the
community.

The case laws of the courts of justice have been in force from this 1952 treaty.
The case laws were seen to be the foundation for the advancement of
Jurisprudence and a precedent from the application of the provisions of the
treaty to the advancement of the EEC treaty. Furthermore the concept of non-
contractual liability was conclusively referred to a “judge - made law”25 as far the
ECSC was concerned.

The Treaty of Rome establishing the European Economic Community

(EEC) of 1957

This treaty is the first Treaty signed in Rome26. Between France, Germany, Italy
and Benelux countries along with the European Atomic Energy Community
(ERATOM) to integrate the common market27, customs union and common
policies of the community28. This Treaty established a common customs tariffs
for non-member states and eradicated customs barriers amongst other
encumbrances to attaining a common market within the member states29.
23
http://euro-lex,europa.eu/en/droit_communautaire/droit_communautautaire.htm#1.1
24
This provision is made under Article 34 and Article 40 for parties subject to the
community jurisdiction and for those who are not part of the community respectively.
25
HENRY G. SCHERMERS, TON HEUKELS, PHILIP MEAD. NON- CONTRACTUAL LIABILITY OF
THE EUROPEAN COMMUNITIES VOL.1987(MARTINUS NIJOFF PUBLISHERS)p.39
26
XAVIER VIVES, COMPETITION POLICY IN THE EU,Chp.1.
27
Taylor H., The case law of the European court of justice has had a far greater impact on
the development of EC Law than any of the various treaties, 2007. Student Law Journal.
28
Article 2 and 3 of the EEC Treaty.
29
Savaruth Pitiyasak, Legal research Free Movement of Goods within EU.
7

This treaty has been amended thrice since 1957.First by the Single European Act
creating an internal market amongst the member states.

The Second time is The Maastricht Treaty on European Union Community

(TEU).The treaty was structured to have three pillars (Policies)30. The treaty was
structured to have three pillars like the Greek Temple .First is on the cooperation
of Member States within the community, second is the common Foreign and
security Policy and the third is the Common Home Affairs and Justice Policy31, the
court of justice is almost totally excluded from reviewing activities that fall within
these pillars. This treaty transformed the EEC into the European Community32.
This means that the community interest now includes social matters and not
trade alone.

The third was the 1997 Treaty of Amsterdam. This Treaty is synonymous with
changes in the in the provisions of the article both in numbering and laws.

The Treaty of Rome established the creation of a common market33and the four
basic concepts of freedom of movement of Persons, Services, Goods and
Capital.34

FREE MOVEMENT OF GOODS

SCOPE
Free movement of goods is an enabling body of the European community and
very crucial to the internal market. Three ideas behind it is to allow free
movement of goods from one member state into other member states untaxed,
common custom duties for goods produced in third countries and the freedom of
such goods in the member state once imported therefore such goods will not be
subject to customs duties again or restricted in movement. The Courts have
however influenced the application of this law through its case law and
frequently by preliminary references.

30
.ibid.20,Article L [46] for further reading :Duff, A, Pinder,J. & Pryce,R. Maasricht and
beyond: Building the European Union(1994,Routledge,London).
31
Ibid.
32
Ibid.
33
Op.cit. No 19.
34
Article 3 EC Treaty ( Treaty of Rome, as amended), Fair Hurst, J. Law of the European
Union Pearson (5th Ed. Longman, Harlow, essex 2006)
8

THE COURTS CASE LAWS AND THE LAWS ON FREE

MOVEMENT OF GOODS IN THE EC TREATY.

(1)
(i) Under Article 23(ex.9) and 24 (ex.10) provide for free movement of goods
produced within Member states and those from third countries.

(ii) Article 23 (1)(ex.9(1))specifies the customs union to direct all trading of

goods and veto customs duties and charges to import or export goods
of member states “having equivalent effect” and implement for third
countries, common customs duties.

To interpret this provision, two controversial questions arise:

What would be classified as GOODS? And

What are CHARGES having EQUIVALENT EFFECT?

“Goods” was however defined in commission v. Italy, as products which “can be

valued in money and which are capable, as such, of forming the subject of
commercial transaction”35when Italian Government prohibited the exportation of
art treasures claiming they did not classify as “goods”. and ECJ held that art
treasures are “goods” within Article23(ex.9) 36ECJ have also defined Goods to
include waste, electricity. Advocate General Fennelly defined goods as
“possesses tangical physical characteristics” 37.

By implication the provision for free movement of goods38 would apply to all
“goods”:

Moved from one member state for sale in another member state, goods
transported through a member state for sale in another or non member
state39.goods re-imported from a member state where it was originally imported,
generated or sold, goods moved by individuals40, goods For personal Usage41 and
Collateral imports.

Article 24(ex.10) deals with free movement of goods with third countries in the
following conditions:

35
Case 7/68 Commission v. Italy [1968]ECR 423,428-9: Catherine Barnard, The
Substantive Law of the EU, The Four Freedoms (Second edition. oxford).
36
Op.cit No.22.
37
Case C-97/98 Jagerskiold v. Gustafsson [1999]ECR 1-7319 par.20.
38
Op.cit No.35.
39
See Case 266/81 Societ`e italiana per l`oleodotto Transalpino v. Minitsero delle
Finanze, Ministrero della marina mercantile Circoscriziono doganale di Trieste and Ente
autonomo delporto di Trieste (Siot v. Ministry of Finance).
40
See Case C- 362/88 GB – Inno BM v. Confe’deration du Commerce Luxembourgeois.
41
Case C-478/98 Commission of the European Communities v. Kingdom of Belgium.
9

Goods should have undergone due processes to importation, equivalent customs

charges have been satisfied within import member state and Goods have not
profited from the custom charges42.

(2) DUTIES AND CHARGES HAVING EQUIVALENT EFFECT

Article 25 (ex.12): this provision abolishes customs duties on imports and exports
and prohibits increments of existing mutual taxations. The provision is
demonstrated by the ECJ in its following decisions:

In commission v. Italy43 the ECJ defined Charges with equivalent effect as “any
pecuniary charge, however small and whatever its designation and mode of
application, which is imposed unilaterally on domestic and foreign goods by
reason of the fact that they cross a frontier, and which is not a customs duty in
the strict sense constitutes a charge... even if it is not imposed for the benefit of
the state. Is not discriminatory or protective in effect and if the product on which
the charge is imposed is not in competition with any domestic product”.

With respect to this provision established Direct Effect In the case of Van Gend
en Loos v. Nederlandse Administratie der Belastingen44. The ECJ exercising its
jurisdiction of preliminary reference under Article 234EC, established the
principle empowering EU citizens to depend and enforce directly, their rights
under Community law in national courts when it held that a member States
duty45 not to introduce new customs duties or to increase existing duties also
applies to individual citizen who can also enforce that right in the national courts.
However the courts have also stated that in determining the possibility of direct
effect the nature of the case in question should be examined46.

Furthermore from the courts decisions, charges stipulated by community law

would not form part of “charges having equivalent effect” where, charges have
not accrued more than actual cost of services, the services enhances free
movement of goods, charges have nothing to do with customs formalities or
services are stipulated in the community law, Commission v. Belgium and
Commission v. Germany above.

(3) Article 90(ex.95)

Provides for the abolition of all discriminatory domestic taxations on similar

domestic products whether directly or indirectly. The Courts decided in
Commission v. United Kingdom that, different charges for wine and beer were
discriminatory.

42
See Article 24(ex. 10) EC Treaty.
43
Op.cit No.29.
44
Case 26/62 NV Algemene Transport- en Expedittie Onderneming van Gend en Loos v
Nederlandse Administratie der Belastingen European Court of Justice 5 February 1963.
45
Article 12 EC.
46
Case 41-74/74 ECR Yvonne van Duyn v Home Office.
10

(4) Article 28(ex.30)

This provision prohibits quantitative restrictions and measures having equivalent

effect to quantitative restrictions on imports and exportations (the technical
barrier to free movement of goods)47.

The Courts defined quantitative restrictions to cover both quotas48 and total ban
on importation and exportations of a given product by amount or by value49.

Referring to measures having equivalent effect to quantitative restrictions, the

Courts held in Dassonville case50 that it means all trading rules enacted by
Member state capable of hindering directly or indirectly, actually or potentially,
intra-Community trade51. In other words laws administrative practices,
regulations, recommendations and even activities52 from public authority with
characterised with quantitative restrictions is prohibited by Article28(then.30)53.

In the cases of Torfaen54 and Cinetheque55, prohibiting national laws held to be

within Article 30 was excused by the Courts.

The Courts found any impediments to free trade as measures having equivalent
effect an focussed on eradicating it. The effect is from Dassonville, the courts
began to hear diverse matters from citizens, relying on Article30 and principle of
mandatory requirements (from Casis case below) to contest National rules or as
a defence to criminal charges. The Court found it necessary to narrow down its
principle in Keck56 where the Advocate general (Mr Van Gervan)was of the
opinion that the national rule was not justified under Article 30 and the Courts
should give the national courts the necessary information to come to appropriate
decision but the court gave a more ambiguous and

47
PENELOPE KENT, LAW OF THE EUROPEAN UNION,p.174-181.
48
Under Article 32 and 33 EC Treaty (repealed by the ToA).
49
In Case C-265/95 Commission of the European Communities v. French Republic; Case
C-484/04 Commission of the European Communities v. United Kingdom of Great Britain
and Northern Ireland.
50
Case 8/74 Procureur du Roi v. Benoit and Gustave Dassonville.
51
PENELOPE KENT , LAW OF THE EUROPEAN UNION, p 200.
52
On activities of public authority see.Case C- 13/00 Commission of the European
community v. Ireland.
53
Case 60 and 61/84 cinetheque SA and Others v. Federation nationale des cinemas
Francais.
54
Case C-145/88 Torfaen Borough Council v. B&Q.
55
Case 60 and 61/84 Cinetheque SA v. Federation Nationale des Cinemas; Advocate
General Slynn, had suggested prior to the decision that the measure in question did not
trigger Article28; see also LORNA WOODS, Free Movement of Goods and Services Within
European Community,p.76.
56
Cases C-267 and 268/91 Keck and Milthouard [1993]ECR 1-6097[1995] 1 CMLR 101.
11

Controversial judgement57, distinguishing between measures that refers to goods

and measures with respect to selling arrangements court held that restrictions
on selling arrangements would not be caught up by the Dassonville principle58.

In Semeraro case59, the Courts stated that Italian law pertaining to selling
arrangements was beyond Article 30.The controversy is would, selling
arrangement refer to period of sales or sales promotions, underselling etc?60

EXCEPTIONS TO MEASSURES HAVING EQUIVALENT EFFECT TO

QUANTITATIVE RESTRICTIONS61

(a) Article30(36) EC (predicated on general non-economic considerations62)

(b) Procedure for exchange of information63

(c) Mandatory requirements(emanating from Casis64 case)

57
The decision in Keck have been criticised to concentrate on factual and legal equality
and not market access and that selling arrangements of equal effect do not prevent
access to the market; NIAMH NIC SHUIBHNE, Regulating The Internal Market.p222.
58
The Court was being wary of frequent cases of ambitious traders utilizing case laws to
contest National rules; similar decision was also reached by the courts in C-259/98 Punto
Casa SpA v. Sindacodel Comunede Capena and others.
59
C-418/93 Semeraro Casa Uno Srl v. Sindacodel Commune di Erbusco.
60
See Case C-362/88 GB-INNO-BM v. Confederation du Commerce Luxembourgeois;PAUL
P. CRAIG DE BURCA,EU Law: Text Cases and Materials(Oxford Press)p.687; CATHERINE
BARNARD,The Substantive Law of EU: The Four Freedoms,p.109;MARGOT HORSPOOL,
MATHEW HUMPHREYS, European Union Law,p.329.
61
http://www.europarl.europa.eu/factssheets/3_2_1_en.htm; accessed on 08/04/10.
62
Justifications based on Public morality, public policy or public security, protection of
health and life of humans, animals or plants, protection of national treasures and the
safe guarding industrial or commercial property. it must be noted that these measure
must have direct connection on the interest of the public to be protected and that
exceptions would not be justified where community legislation has come into force in the
same area; http://www.europal.europa.eu/factsheets/3_2_en.htm; accessed on 08/04/10.
63
Ibid.
64
Case 120/78 Rewe-zentral AG v. Bundesmonopolverwalting fur Branntwein (Casis de
Dijon) [1979]ECR 649;[1979] 3 CMLR 494.
12

MANDATORY REQUIREMENTS
EMANATING FROM
CASIS DE DIJON
Casis case65 is famous with the policy of mutual recognition66 founded in the
dependent phrase67 used by the Court in its judgement. After this case, goods
where freely imported from one member state to another member state
“provided that the goods have been lawfully produced in another member
state”, as the basis of admittance. This was the first principle (Principle of
equivalence68) from this case.

The second principle is the rule of reason. The Courts expressed that in absence
of community law, the requisite list (Mandatory requirement) a contrast to Article
30 divergence are:

The Protection of public health, Effectiveness of fiscal supervision, Fairness of

commercial transactions, and Defence of consumer69.

These above exceptions70 obstruct the flow of goods in EU but the Courts again,
buffered them down by introducing the Principles of Non discrimination and
Proportionality71.

The principle was established by the Courts by expressing that, for goods to be
properly restricted, such restriction should not be discriminatory in any form72.
This means that goods should not be restricted by a member state because such
goods where not produced by them or where a member state places restrictions

65
Ibid.
66
KAREN J. ALTER, The European Courts Political Power (Selected Essays) p. 140.
67
“There is therefore no valid reason why, provided that they have been lawfully
produced and marketed in one Member state, alcoholic beverages should not be
introduced into any other Member state”. Ibid No.48,p.142.
68
The principle stipulates that where goods meets the standards of exporting member
state, such goods should be treated as already met the standards of the member state of
importation. Thus where goods are lawfully produced and sold in one member state, such
goods should not be restricted from entering another member state by quantitative
restrictions or measures having equivalent effect; see C-196/89 Italy v. Nespoli and
others [1990] ECR 1-3647;[1992]2 CMLR 1; also JOHN TILLOTSON< NIGEL G. FOSTER,
TEXT CASES AND MATERIALS ON EUROPEAN UNION LAW (CAVENDISH PUBLISHING
LIMITED 4th Ed.) p. 287.
69
PROFESSOR ROSA GREAVES, EC SUBSTANTIVE LAW (OSLO UNIVERSITY) Chp.6.
70
The four exceptions of Article 30 (ex.36) and Mandatory requirements.
71
JOURNAL OF WORD TRADE, VOLUME 35, ISSUES 1-3 pg. 150-200.
72
C 169/91 Stoke-on-Trent City Council v. B&Q PLC [1992] ECR 1-6635, the Courts held
that in the absence of any discrimination between imports and domestic goods, the UK
Law on Sunday sales did not violate Article 28(ex.30) similar decision was reached by the
Courts in Case C-23/89 Quietlynn Ltd v. Southern Borough Council 1990 E.C.R 1-3059;
see also DANIELA CARUSO,LIMITS OF THE CLASSIC METHOD: POSITIVE ACTION IN THE
EUROPEAN UNION AFTER THE NEW EQUALITY DIRECTIVES, 44 Harvard International Law
Journal 331 Summer 2003, Boston University School of Law .
13

on importation of goods that are lawfully produced or sold in that member state.
Or where there are little precautionary measures to the public or health, such
measures (like proper labelling) should be adopted instead of totally restricting
the importation of goods that appear to be harmful to citizens (Proportionality)
see case of Italy v. Nespoli73.

COMPETITION LAW
Competition law is one of the pillars of the European Union Single
market74.Competition law is the private law opposite of the EU four freedoms of
internal market(While the measures to Four freedoms take care of Member
States, Competition law is directed to individuals)for a proper European unified
market75.

The policy of competition law is to avoid any mutual understanding or plans

between unions (business men), any assistance from public authorities or any
unjust market domination from interrupting the free flow of trade competition
within the EU.

Although the European Coal and Steel Community had little purveying for this
policy76 but this idea was also present (not comprehensively) in the Treaty of
Rome77with similar provisions in the TFEU.

To enforce this policy is the commission with the assistance of the Courts. As Eric
Stein had pointed out: the commission is often the source of new ideas that are
then given authoritative force through the inclusion in the decisions of the
court78. In 1965 the council being less interested in the construction of the policy,
granted the commission ample powers to legislate on competition law matters
without consulting the council. It was then left to the commission to be wary of
taking actions that may displease the community. As a cautionary measure the

73
Op.cit note 60. Similarly see Commission v. Germany .supra, where the Courts held
that German law prohibiting beer importation violated the principle of proportionality and
therefore not an exception under Article 30(ex.36) since the proper labelling of the beer
will allow consumers purchase the goods if they like its contents.
74
A mechanism to induce industrial and commercial enlargement broadly within the
American market and to abolish tax-related barriers which were some of the
impediments to free movement within the community after custom barrier was
dispatched by the 1957 Treaty establishing the European Economic Community. see
http://europa.eu/pol/singl/overview_en.htm accessed on 10/04/10. and PAUL P. CRAIG,
GRAINNE DE BURCA, EU LAW TEXTS, CASES AND MATERIALS (4th ed. Oxford
Press)Chp.17, on Single Market.
75
BARRY. E. HAWK, ANTITRUST IN THE EEC-THE FIRST DECADE, 41 FORDHAM L. REV.
229, 231 (1972).
76
See JAMES A. RAHL, Common Market and American Antitrust ,22-30.
77
See Articles 85(1),85 (3), 86,87,89 and Article 90 of the Treaty Establishing the
European Economic Community[EEC Treaty], March 25,1957.
78
ERIC STEIN, Lawyers, judges and the making of the Transnational Constitution. J. INT’L
L.1 (1981) at 24-25.
14

Commission cooperates with the courts to enforce its actions against

businessmen.

The courts on the other hand, created its own role as the principal motor of
integration79and has played a central legal role in shaping and directing
competition law80. The Commission co-operating with and the courts at this time,
had a common objective of economic integration81.The Courts using early
competition law practices managed to ensure momentum in the integration
progression82 and continually created principles in distinct fields of competition
law that member state courts paid more attention to the courts and slight
attention to the commissions83.

From 1970 and 1980’s the84, the Commission being a political body and( the
courts less efficient with politics)the Commission not completely reliant on the
Courts85, directed its decisions to the interests of member states and the role of
the Courts was reduced to an Administrative role86 in addition, the creation of
the Court of First Instance in 1989(CFI)87.

THE COURTS (OVERVIEW)

79
See, KAPTEYN & VERLOREN VAN THEMATT, Introduction to The Law of European
Communities 103-31 (Lawrence W. Gormley ed., 2d. ed.1989).
80
The first important case on competition law decided by the courts was in1960 at the
time General De Gaulle threatened to impede community integration, see joined cases
56 & 58/64 Establishment Consten, SARL v. Commission,1966 ECR.299 (it was the Court
that maintained the momentum),HANS KUTSCHER, Uber den Gerichtshof der
auropaischem Gemeinschaft, 16 EUROPARECHT 393-413(1981).
81
See e.g Case 6/72 Europemballage corp v. Commission (continental can), 1973
ECR.215
82
Ibid note 71; from 1073 to mid 1980 (Period of Oil Shock to Eurosclerosis) when the EU
suffered Economic and political stress that threatened the future of the European Union.
The Courts with the use of early competition law policies was able to maintain integration
progress of the EU.
83
Ernst Steindroff, Europaisches Kartellrecht vor staatlichen Gerichten 1971-1978: Zur
Entwick lung des europaischen Karlellrechts,Teill , 146 ZEITSCHRIFT FUR DAS GESAMTE
HAMDELSRECHT UND WIRTSCHAFT SRECHT 140, 142,162 (1982).
84
See. DAVID J. GERBER, THE TRANSFORMATION OF EUROPEAN COMMUNITY
COMPETITION LAW?, Vol.35, Number 1, Winter 1994, For period of change on the status
of the courts see ,THE ROLE OF NATIONAL LEGAL SYSYTEM and TREMORS OF CHANGE;
case 127/73 Belgische Radio en Televise v. SV Sabam 1974 ECR. 51.
85
Ibid; in contrast courts are not well adapted to evaluating the market of conduct which
requires more economic analysis, so the Courts must therefore rely on the Commission
to make adequate economic evaluation and decisions.
86
The courts basic function is that of ensuring that the Commission, performs its
functions correctly and operates within the rules and principles established for it by
Community’s political organ. As the courts also admitted have also its administrative role
in, Case 42/84, Remia v. Commissions, 1985 ECR .2566,2575.
87
The Court of First Instance (CFI)hears generally all cases of competition law decisions
of the commission reducing the activities of the Court of Justice to only deciding appeals
from the CFI and responding to questions from member state Courts.
15

From the above discussions, we have seen how the ECJ has in steps been
empowered by itself and by the provisions of the treaties (more importantly, the
treaty of Rome 1957)88and how the courts have single-handedly accelerated the
EU trade laws. The courts have established through its legal precedence and
power to refer, the principles of direct effect and Supremacy. This became the
legal frame work for its decisions. In all these circumstances it was the ECJ
interpreting the EU Treaties, instead of political augments, that determined the
scope of the EU project89.

THE COURTS AND POLITICS

A good analysis of a political ECJ is the political consequence to the court
decision in Casis. This was triggered by the commission, quickly deducing from
the court’s decision its own conclusion useful points for developing a new
approach to harmonization policy to fulfil its duty to effectively attaining the
European internal market90.

The commission gave a wide interpretation to the decision of Casis thereby

suggesting the decision should serve as the foundation of the new policy of
harmonization91. Thus member States must pay attention to the legitimate
requirements of other member states92. This interpretation was criticised
following the scrutiny of the council in addition other contradicting decision of
the court in the quest of narrowing the interpretation93.

It must be noted here that decisions of ECJ, have policy implications. But this is
only when such decisions reflect good policy agreement94. The courts principle of
mutual recognition was partly frustrated for negative political response to the
decision95.

In sum, for the court’s decision to become a policy, the commission has to
recognise the judgement, unless it dies out96. In addition, such decision depends
on the political responses it provokes97. Thus the court can be said to be a
political actor, responding to the political needs of the member states, however,
the courts can act independently on the member states like in the decision of
Casis and the Casis decision has acted as a catalyst by introducing mutual
recognition into the EU98.

88
www. Civitas.org/eufacts/os/os6.htm.accessed on 09/04/10.
89
Ibid.
90
Op.cit note 58,p. 143.
91
ibid, p. 144.
92
ibid
93
Ibid, p. 145.
94
Ibid, p. 148.
95
Ibid, p. 151.
96
Ibid, p. 153.
97
Ibid, p. 157.
98
Ibid.
16

THE COURTS AND COMPETITION LAW

From Competition law above, the courts took active part to the structuring and
survival of competition law, until the CFI emerged. The CFI under Article 225 (3)
now has the jurisdiction of preliminary reference however99, Article 225
paragraphs (3) EC still provides for the CFI to refer to the ECJ where a matter
requires decision of principle likely to affect the unity or consistency of

community law100 and further provides that decisions of the CFI may be reviewed
under some circumstances listed in the Statute101.

It therefore follows presently that the most eminent direction to the ECJ is the
preliminary reference procedures102 prescribed in Article 234 EC.

Seeing how the ECJ took part in the development of the EU trade law, there have
also been some criticism on the ECJ both in the past and presently.

CRITICISMS OF THE COURTS

In 1995 the then Warden of All Souls College, Oxford, Sir Patrick Neill QC in an
attempt to analyse the Courts, argued that many decisions of the courts were
“logically flawed or skewed by doctrinal or idiosyncratic policy
considerations”103 . The courts has also been expressed to be a controversial
institution104 and this view was followed by Baroness Thatcher during debates on
bill105 to give effect, to the treaty on the European union signed in Maastricht in
1992 where she vehemently expressed that the courts using the European
integration as bases of its rulings has only managed to give itself and the
European community, more powers at the expense106 of the citizens by using
laws that are totally different from the usual domestic laws and unfavourable to
the citizens.” it has by its decisions greatly extended the powers of the
centralised institutions against the state107...that does not have constitutional
checks and balances108 to temper its power..”109.

99
CARL BAUDENBACHER, CONCENTRATION OF PRELIMINARY REFERENCES AT THE ECJ OR
TRANSFER TO THE HIGH COURT/CFI : SOME REMARKS ON COMPETITION LAW.
100
Ibid.
101
Ibid; See also, the Commissions Guidelines on the application of Article 81(3) of the
Treaty 2004/C101/08, point 3.2.
102
Op.cit note 90.
103
ANTHONY ARNULL, THE EUROPEAN UNION AND ITS COURT OF JUSTICE,pg.2,
paragraph 1.
104
Ibid page 1, paragraph 1.
105
The bill eventually became the European Communities (Amendment) Act 1993.
106
Op.cit note 101.
107
Op.cit note 101.
108
Ibid.
109
Op.cit note 93; HL Deb, 7 June 1993, Col 563-4.
17

There are four decisions of the ECJ since 2007 that have been said to affect trade
unions throughout the EU110.

Case C-438/05, Viking Line v ITF (11 December 2007): The court held that an
industrial action may be unlawful under EU even though it is within domestic
labour law similarly in Case C-34 -341/05, Laval v Svenska
Byggnadsarbeareforbundey (18 December 2007)111 .thus the right of business to
freedom of establishment must take priority over the right of trade unions112.
These decisions where followed closely in the Ruffert and Luxembourg cases113
(below).

In Case C-346/06, Ruffert v. Land Niedersachsen (3 April 2008), the courts held
that collective agreements required by law was in breach of posted workers
Directives114 and,

In Case C-319/06, Commission v. Luxembourg (19 June 2008), the courts held
that collective agreements other than those specified by Article 3 (3) of the
Directive115 was in breach of the EC treaty.116

It follows from the courts decisions (above), that it is immaterial if the actions of
union is protected by domestic law, the union can be sued where in breach of the
EC treaty as would have been the case in BALPA v. British Airways if it had taken
the industrial action relating to company’s open skies initiative. Following this
case, the General Secretary Airline Pilots complained on the adherence of
decisions of ECJ that judges now have cart blanche to rule on the weight to be
given to interest of parties117.

CONCLUSION
From the points examined above, It is my conclusion that, although the ECJ has
been criticised, although it has been found to have erred in some of its decisions
or even exceeded its boundary, the fact cannot be traversed that the operations
of the ECJ is bestowed in the provisions of the treaty that prescribes the
jurisdictions of the court and subsequently as consequences to the treaty the
member states signed up to.

By creating a community, with its own institution, its own personality, its own
legal capacity, the member states have limited their sovereign rights, albeit

110
KEITH EWING, DECISIONS OF THE EUROPEAN COURT OF JUSTICE: IMPLICATIONS FOR
UK LABOUR LAW, (THE INSTITUTE OF EMPLOYMENT RIGHTS)
111
Ibid. p.147.
112
Ibid. p. 130.
113
Ibid. p. 138.
114
Ibid.
115
Ibid.p.151.
116
Ibid; Article 49 on Posted Workers Directives.
117
The General Secretary of Pilots was of the opinion that the British Government has to
act on the controversial decision of the courts as it would affect the further decisions of
English judges. See http://www.balpa.org/News-and-campaigns/News/Pilots-TO-TAKE-UK-
GOVERNMENT-TO-ILO.aspx; accessed on 08/04/10; Op.cit note 97.
18

within limited fields, and have thus created a body of laws which binds both their
nationals and themselves118.

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