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The Limits of Free Circulation; The Torfaen Borough Council Case

Published online by Cambridge University Press:  21 July 2009

Marc van der woude
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Extract

The energetic implementation of the 1992 programme should not be allowed to put the contribution of the Court of Justice to the establishment of the Common Market in the shade. Its case law on the direct effect of Treaty provisions concerning the free circulation of persons, services and goods enables European workers and business-men to fight effectively against protectionism in the EEC Member States. The Court gives, moreover, a very broad interpretation to the prohibitions contained in these provisions and, reciprocally, a very restrictive interpretation to their exceptions. This approach leads to the removal of nearly every obstacle to free trade. Liberalisation has its limits however. Certain economic activities require regulation, even if it has restrictive effects.

Type
Current Legal Developments
Information
Leiden Journal of International Law , Volume 3 , Issue 1 , April 1990 , pp. 57 - 63
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1990

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References

1. See The Economist, Sept 12, 1989, at 32, (conceming Mr.Delors ‘subsidiarity’ principle).

2. 8/74. Dassonville, ECR 1974, 837.

3. 7/61. Commission v. Italy, ECR 1961, 317.

4. 120178, Rewe, ECR 1979, 649.

5. For example: an obligation to seU margarine in cubic forms is not necessary, within the meaning of the Cassis de Dijon Case law, to protect the consumer against a possible confusion between margarine and butter, which is sold in rectangular packages. This is because a less restrictive alternative exists to achieve such protection. A clear labelling of margarine suffices. See 261181, Rau. ECR 1982, 3961.

6. 249/81, Commission v. Irelami, ECR 1982, 4005.

7. 286/81, Oosthoek, ECR 1982, 4575.

8. See also 148/85. Forest ECR 1986, 3449 and 20187. Gauchard, ECR 1987, 4879.

9. 155/80, Oebel, ECR 1981, 1993.

10. 75/81, Blesgen, ECR 1982, 1211.

11. 238/82, Duphar. ECR 1984.523. The Dutch measure could not be justified on grounds of public health pursuant to Art 36. The outcome was different in 266 and 267/87, Royal Pharmaceutical Society. May 18, 1989 (not yet reported).

12. 60 and 61/87, Cidwue, ECR 1985, 2605. A similar Danish measure was based on copyright law and Article 36 could therefore apply. See 158/86, Warner Brothers, May 17, 1988 (not yet reported).

13. 145B8, Torfaen Borough Council. Nov. 23, 1989 (not yet reported).

14. Opinion of Advocate General Van Gerven, June 29, 1989, Case 145/88, supra note 13.

15. It should be noted, however, that in some exceptional cases the restriction of trade may also result from disparities between nondiscriminatory measures of a general nature. It is not clear what case law should appply in such situations.

16. See 82/77, Van liggele, ECR 1978,25 and in particular 13/77, GB-Inno-BM v. ATAB, ECR 1977, 2115.