The Cassis De Dijon Rule Of The Reason

In order to ensure the market integration which was one the basis of the european union, the differents legislators had created the four fundamental freedoms of the european union: the free movements of goods, the freedom to provide services, the free movement of people and the free movement of capital.

Within the free movement of goods principle, the treaties had defined another principle which had already largely been abolished within the framework of the OECD and the WTO: the prohibition of quantitative restrictions or quotas between Member states. Aticles 34 and 35 also prohibit such measures but also those who have "equivalent effect". The ECJ had clarified such measures by saying that the rule of free movement encompass, since the judgement Dassonvile (ECJ 1974), not only the prohibition of discrimination but also a prohibition of other, even potential, barriers to free movement. More generally, all trading rules affeting intra-union trade are to considered as measure having the same equivalent effect.

However, the treaties define some exceptions to those articles which are lay down in article 36 TFEU: public morality, public policy, public security, the protection of health and life of humans, the protection of national treasures possesing artistic, historical and archaelogical value, the protection of health and life of animals, the protection of industrial and commercial proprety. This list is an exhaustive and close list which cannot be extended. Facing this issue the ECJ, opened the doors to certain "reasonable" national measures in restraint of trade being regarded as compatible with the article 34 TFEU. It was one of the most important case concerning the free movement of goods: the cassis de Dijon case giving birth to the rule of the reason principle. But it must be noticied that where the article 36 can be applicable by the way of derogation, the ECJ usually prefers to apply it rather than using the cassis de dijon rule of the reason approach (ECJ Commision vs Germany (german sausages)).

The conditions for the application of the rule of the reason principal are severals.

First, an abscence of union rules (eg: when a directive allows menber states" to adopt or maintain more favourably provision to adopt consumers (Buet vs Ministère public)).

Then, the measure need to be equally applicable which no dicrimination can be apply from those measure (eg: a governement organizes special procedure solely applicable to domestic products (commission vs Ireland ECJ 1982), .

The measure also need to be taken in the general interest and there is no clear definition of "general interest" so this condition is an open list, such as consumer protection, environemental protection, promotion of culture...

And finally the measure need to be adequate and proportionnate. As an example, a compulsory cubical form of margarine package is disproportionnate to protect consumer against being induced to believe that is butter ( Rau vs De smedt ECJ 1982).

Applicable at first to the solely free movement of goods, the cassis de dijon rule of the reason give a flexible interpretation of the article 34 and 35 TFEU. This essay will show how this principle had been apply by the ECJ to the others freedom such as the freedom to provide services, the freedom of establishment, the free movement of workers. The ECJ not always refers direclty the Cassis de Dijon rule of the reason but usually adapt its judgement to the freedom in question. Each of this freedom have a legal basis lay down on the treaty and the ECJ, like for the free movement of goods, give a flexible interpretation to those articles and allow a restriction of those freedom always based on the principle of non- discrimination. Thus, each of those freedom will be describe and it will be shown how the ECJ extend the possiblity of restrictions with the nuances in the case-law.

First of all, the freedom to provide services is always considered as close to the free movement of goods principles which lead to a certain amount of similarities. But let's clarify the treaties provisons first. The treaties do not have special articles concerning the infrigment of the freedom to provide services, this principle is based on the prohibition of any discrimination based on the basis of nationality. The freedom to provide services enable an economic operator providing services in one member state to offer services on a temporary basis in another member state, without having to be established.

There is a possiblity of restrctions based on public order, public security, public health and general interest, but the ECJ also has also developped a possiblity of restriction of this freedom which is also based on the Cassis de Dijon principle with a proportionnality test. However the specificity of the freedom to provide services led the ECJ to adopt a more lenient variant of the rule of the reason principle, mostly where the member states have a broad latitude. Concerning those subjects the case of gambling games and some concerning health protection can be good example.

Indeed, the regulation concerning gambling games are part of domains in which the considerable differences of moral religious and cultural order exits between member states. In Shindler ( ECJ 1994), the ECJ considered that "the particular features of loteries justify national authorities having sufficient degree of latitude to determine what is required to protect the players and more generally, in the light of the specific social and cultural features of each member states, to maintain order in society, as regards the manner in which lotteries are operated, the size of the stakes, and the allocation of the profits yield and to decide either to restrict or prohibit them. However, in those cases, the identfication of the objective pursued by the national authority is to be controled by the ECJ (ECJ Dickinger and Ower).

In matter of public health, member states also a broader latitude than the conditions of Cassis de Dijon rule of the reason afford. In Bacardi (ECJ 2004), the prohibition on the advertising of alcoholic beverages during the television broadcast of sporting events have been considered as a legal restrction to provide services based on public health.

Again, in those matters, member states are concerned to adopt measures and a certain level of protection that they wish to afford and the way that protection is achieved. However, in order to avoid a discretionnary power in the hands of member states, the ECJ control the proportionnality of the measure and also check if it does not go beyond what is necessary to attain the objective pursued.

Those cases shown that even though the Cassis de Dijon rule of the reason priciple is applicable

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