Acceso usuarios
Jukka Snell
The ruling in Cassis de Dijon has recently turned 40. In 1979 the Court famously held that Germany could not prevent the sale of Cassis de Dijon blackcurrant liqueur imported from France, despite the fact that the product did not comply with the German requirements on minimum alcohol content. The Court held that the German rules restricted free movement of goods and were not a proportionate way to serve the interests of public health or consumer protection. In the view of the Court, “[t]here is therefore no valid reason why, provided that they have been lawfully produced and marketed in one of the Member States, alcoholic beverages should not be introduced into any other Member State.” Cassis was seen by many as a breakthrough. Equally applicable national rules were now caught by the Treaty. The leading principle was mutual recognition. Outdated or irrational national practices could be challenged under free movement of goods even in the absence of discrimination—an idea that soon spread to the other freedoms as well. Further, a radical rethink of the Community political organs’ failing programme of detailed harmonisation appeared feasible: if many national rules could not be applied to foreign products as a result of Cassis in any event, perhaps they did not need to be harmonised in the first place. Indeed, according to Lord Stuart Mackenzie, a judge at the Court between 1973–1988, Cassis was the most important decision made by the Court during his tenure, while Lord Cockfield, the internal market Commissioner between 1984–1988, is reported to have considered the exportation of Cassis from the Court and goods to the single market 1992 programme his greatest achievement.
Despite the undoubted substantive and institutional significance of Cassis, from today’s perspective its actual impact on the ground should not be overplayed. It did not introduce an unqualified system of home country control; rather it explicitly acknowledged the power of the importing country to apply its rules if they were justified in the public interest and complied with proportionality. Therein lies its weakness: a qualified principle of mutual recognition can only create an equally qualified and incomplete internal market. In practice, national authorities routinely assume the validity and legitimacy of their national laws, unless directly told by a court that this is not the case. For businesses, the time, expense and uncertainty involved in legal challenges often means that it is easier to obey national rules than to insist on European rights. Empirically, while the internal market has outstripped free trade areas in terms of its impact on costs and competition, “trade between European countries is estimated to be about four times less than between US states once the influence of language and other factors like distance and population have been corrected for. For goods, non-tariff obstacles to trade are estimated to be around 45 percent of the value of trade on average, and for services, the order of magnitude is even higher.” In the case of Brexit, it is striking that the long term negative economic impact of a no-deal Brexit is usually predicted to be relatively modest, all things considered: for example, the UK Government’s projection of the impact on GDP of reverting to trade on WTO rules is -7.7%—a serious blow for sure, but not an apocalypse. This again reflects the fact that the single market remains incomplete. Trading on WTO terms is significantly worse than under internal market rules, but not catastrophically so.
Perhaps we should be content with an incomplete internal market. Europe is diverse and so are its rules. Those rules reflect local and national preferences. Cassis allows such rules to be maintained, provided that a sensible justification can be offered. Further, even if there is a finding that free movement provisions have been breached, this does not mean that the national law becomes void. It can still be applied to national products, given that purely internal situations are not covered by the free movement rules of the Treaty. Cassis is a judgment that manages diversity; it does not impose uniformity.
Unfortunately the move to the single currency, euro, makes it difficult to continue to accept such an incomplete model of market integration. The benefits of a monetary union are felt through a well-functioning internal market where trade and investments flow between the countries. The resilience of a monetary union depends on things such as labour mobility and integrated capital markets that can cushion economic shocks. Divergences between countries that are perfectly acceptable in a single market may prove highly problematic and damaging in a monetary union. It is no accident that proposals for the reform of EMU often call for the strengthening of the internal market but also for much greater harmonisation than today. Qualified mutual recognition à la Cassis does not produce the convergence between national business environments that an economic union needs.
At 40, it is not yet time for Cassis to retire, even if its best days may be over. Mutual recognition undoubtedly still has a place in the market integration project. It just cannot take the leading role anymore if we hope to move towards a genuine economic union capable of supporting the single currency.
