The Virtue of Cassis de Dijon 25 Years Later—It Is Not Dead, It Just Smells Funny

Chapter
Part of the Studies in European Economic Law and Regulation book series (SEELR, volume 3)

Abstract

This piece specifies how and where the Cassis de Dijon case influenced EU internal market regulation. For a start, I will place the case into the more general context of internal market integration. I will then highlight the different concepts that have been developed from the Cassis de Dijon case such as e.g. the theory of the information paradigm, the confident consumer, the principle of mutual recognition, and the “new approach”. I will show how each of these concepts has developed in the course of internal market law. Finally, I will conclude that albeit that these principles have come under attack from various sources, the lessons drawn from Cassis de Dijon still remain the yardstick for the evaluation of internal market law today. I have to apologize for the lack of modesty by relying occasionally on works that I have published earlier. I take this contribution also as an opportunity to react to criticism on previous publications of mine by putting them into the more general context of internal market regulation.

Most people know Hans Micklitz nowadays as a well-established, concentrated, eager scholar, carefully balancing pros and cons before formulating a strong argument. Sometimes, when he feels relaxed and is not distressed from his numerous duties he is involved with as Head of the Department of Law at the European University Institute, one may observe the rare opportunity to hear some story from an earlier time when he was struggling as a youngster in academia, a peculiar thing especially in the “empire of light”1of the for good reasons proud German Rechtswissenschaft: in one of these stories, Hans Micklitz had to present in front of the faculty a then newly published ECJ2 case concerning a German prohibition of the distribution of a French brand of liquor ‘Cassis de Dijon’ since the marketing of fruit liqueurs was subject to the condition of a minimum alcohol content of 25 %.3 After a careful analysis of the case and upon presentation, he did something that can be murderous for a youngster in most cultures of European academia: in a straightforward fashion, he told the faculty that this judgment had the potential to change the whole EU internal market law system. The reactions received are predictable to those who have some insights into German academia: He met utmost resistance. Obviously, it was not for a youngster to make such a claim. Such a statement, no matter whether right or wrong, is reserved for more senior staff. But also on the substance: how could an innocent case from the area of food law concerning a ban of liquor affect the EU legal system to such an extent?

Looking back 25 years later, this story seems a farce. The Cassis de Dijon case and its subsequent (political) interpretation by the European Commission4 have indeed triggered a whole new understanding of internal market harmonization way beyond foods. For the first time it allowed to develop autonomous concepts of EU law such as the principle of (conditional5) mutual recognition, which has since materialized into an independent “market access” criterion, the concept of the confident consumer, or the information paradigm,6 which influenced a large bunch of primary and secondary law, way beyond the area of food law and even law outside of the EU. This piece hence aims at emphasizing that Hans Micklitz was right to specify how and where the Cassis de Dijon case influenced EU internal market regulation. For a start, I will place the case into the more general context of internal market integration (15.1). I will afterwards highlight the different concepts that have been developed from the Cassis de Dijon case such as e.g. the theory of the information paradigm, the confident consumer, the principle of mutual recognition, and the “new approach”. I will show how each of these concepts has developed in the course of internal market law (15.2). Finally, I will conclude that albeit that these principles have come under attack from various sources, the lessons drawn from Cassis de Dijon still remain the yardstick for the evaluation of internal market law today (15.3). I have to apologize for the lack of modesty by relying occasionally on works that I have published earlier.

15.1 The Cassis de Dijon Case and its Impact on the Internal Market Concept

The establishment of an internal market is traditionally based on the concept of classical free trade theory.7 First formulated by Adam Smith as a theory of absolute advantage, it was David Ricardo who subsequently advanced the idea to a theory of comparative advantage8: even if one assumes that a country was more efficient in the production of all goods than another country, both countries would gain by trading with each other, as long as they were characterized by different relative efficiencies. That is because the former country may gain when it specializes in the production of the good where it has a comparative advantage, supposing it may trade that good for other goods whose production it gives up. By removing obstacles for cross-border trade a greater number of transactions will be possible, cooperation and specialization based on a division of labour will be facilitated, and competitive pressure will increase. Ideally, this will result in an efficient allocation of production, labour and capital, cheaper and better products for all market players in the internal market, and ultimately in an enhancement of social welfare.9 Consequently, the European legislature is called on to ensure that regulatory initiatives that are based on the competence of the Union to establish an internal market, and particularly on its competence pursuant to Article 114 TFEU, are ultimately apt to indeed reach the efficiency gains that are promised by the project of establishing an internal market.10

In light of this neo-classical concept, the harmonizing measures before Cassis de Dijon were mainly concerned with erasing market barriers along the lines of national frontiers. In primary law, the Dassonville judgment made certain that, wherever common rules imposed by secondary law have not yet levelled Member State laws according to a European standard, any measure that actually or potentially, directly or indirectly hindered trade would be subject to judicial scrutiny.11 This brought to the Court a wide array of domestic laws, ranging from health measures to pornography, store closing laws, worker safety, consumer protection, product safety, and virtually every regulation of the marketplace with the potential to slow trade. If France did not permit the marketing of apples exceeding its allowed pesticide level, any apple coming from a European Member State adhering to a laxer regulatory standard would be excluded from the French market. If Britain followed stringent obscenity rules, materials produced under more permissive Danish standards would not be allowed access to the British market. If Germany relied on worker training to ensure operator safety with respect to particular machinery, and France chose an automation philosophy, then German machines would not satisfy standards necessary to be operated in France.

Secondary law made clear that this rationale was enforced. It erased market barriers by levelling the disparate laws in the Member States through the prescription of common European standards. Measures based on Art. 100 TEEC (now Art. 114 TFEU) made certain that Member State’s barriers to trade were erased up to a point where the legal objectives enumerated in Art. 36 TEEC required individual protection (re-regulation). In those days, it was without question that this required first re-regulation at a Union level (and not Member State level) and second classical top-down regulation (and not innovative regulation, which also takes account of insights from e.g. private law). In product safety law, the first acts and their successors hence stipulated classical command-and-control mechanisms, which regulated the product’s lifecycle to different extents.12 The removal of trade barriers was intended to be achieved by the setting of detailed, obligatory substantial and procedural standards, which prescribe actions required from special target groups instead of setting performance standards, which had been the dominant governance mode in the EU for almost 30 years.13 We still see the heritage of this classical integration method today when we look into the wording of Art. 114 (1) TFEU, which only allows “measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States”, albeit that phrase is nowadays used way beyond this wording to solve “specific problems of cross-border transactions.”14

This classical model soon came under attack. The Dassonville-formula brought in front of the Court a wide array of measures, too many for such a small Court to handle.

“(T)aken to extremes, a broad reasoning of Dassonville might mean that Article 34 could be used to challenge rules limiting Sunday trading or development in the green belt or age restrictions on who can buy alcohol.”15

As nearly any national measure which qualifies as a “trading rule”16 could be scrutinized by the ECJ, this legislation maximizes “the right for individuals to participate on the market on whatever terms they choose,”17 and enforces an understanding of the EU legal order as an economic constitution. On the one hand, such a wide interpretation of “measures having an equivalent effect” in Dassonville was needed at a time where the internal market project “was in its infancy and national protectionist traditions were well-entrenched, while national judges were still often unfamiliar with EU law.”18 It hence formed an “effective tool to cull the dead wood of centuries of accumulated legislation.”19 On the other hand, these rules under scrutiny of the Dassonville formula often served a social purpose20 and, upon closer inspection, while they might meet the “trading rule”-test their effect on trade was only little and quite remote.21 With this interpretation, the Court had hence interfered deeply into the sovereignty of Member States, maybe a little too much for what the Member States could handle. If the Court would have continued with only the Dassonville-approach, the Member States’ support for the European integration project and therefore its legitimacy would have been seriously at risk.

The classical harmonization method via standard-setting in secondary law came likewise under attack. Although in line with the classical European command-and-control method that was originally envisaged by Art. 100 TEEC (now Art. 114 TFEU), this purely centralized regulator model was subject to heavy criticism on several accounts. For some, this traditional harmonization approach was ill-suited to achieving the objective of market integration, as these Directives regularly covered only one of a wide range of aspects in the respective product sectors.22 For others, the “Europeanisation”-approach resulted in the use of this command-and-control-regulation to an extent which had never been exercised before even in national law.23 In their view, “it produced ‘Europroducts’, which alienated the consumer.”24 Either way, there was widespread agreement that the classical standard setting approach envisaged by Art. 100 EEC (now Art. 114 FEU) was not suitable for the achievement of the goals set by the respective Directives.25

It is against these perils of the understanding of internal market harmonization at that time that one has to evaluate the Cassis de Dijon case. Under unspoken but quite obvious recourse to the Dormant Commerce Clause from US law,26 the ECJ developed in Cassis de Dijon a solution for the perils from Dassonville. The facts of the Cassis de Dijon case are well known, such is the judgment of the ECJ. It shall hence suffice to highlight the main facts and reasoning of the case:

Germany had prohibited the distribution of a French brand of liquor since the marketing of fruit liqueurs was subject to the condition of a minimum alcohol content of 25 %. The ECJ, interpreting the notion of measures having equivalent effect to quantitative import restrictions as it is now laid down in Article 34 TFEU, deviated from the classical harmonization model with several arguments.

It first determined that, if they are “necessary in order to satisfy mandatory requirements”27, “obstacles to the movement within the community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted.”28 The Court then enlisted some of these “mandatory requirements”: “the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.”29 This finding of the Court was in direct confrontation with the classical idea of the realization of comparative advantages. By accepting especially the “defense of the consumer” and the “protection of public health” as a restriction to trade, the Court acknowledged that the idea of an internal market cannot convincingly put forward vis-à-vis its addressees if the free movement of goods results in an inefficiently high level of both, physical and monetary damage. In other words, if the wealth maximizing virtues of internal market integration are accompanied by negative external effects which may harm third parties, we may seriously put the whole concept of internal market integration at risk. Since Cassis de Dijon, classical free trade theory is hence accompanied by the need to counterbalance commercial freedom with its negative externalities even beyond those which are dealt with in antitrust law. This statement in isolation would have had the potential to revolutionize internal market law, as it allowed re-regulation at Member State and also Union level to a great extent.

If the ECJ had remained silent after this passage, the possibilities to justify national restrictions to trade would have been endless. It would have turned around the whole concept of classical free trade theory by allowing Member States to implement legislative measures that were formally turned down as obstacles to trade under the Dassonville formula. Furthermore, this passage has the potential to be interpreted as requiring the European standardization of products in order to meet the requirements of primary law for the sake of consumer and health care protection.30 It thereby expanded the standardization-approach from secondary law to primary law, albeit that it had already proven to be ill-suited for the establishment of the internal market in secondary law. In short: such a reading of Cassis de Dijon would have rendered the whole concept of internal market integration meaningless. In Cassis de Dijon, the ECJ hence had convincingly brought to light the two conflicting goals of internal market regulation: on the one hand, classical free trade theory required removing obstacles to trade in Member State law in order to ensure the benefits gained from comparative cost advantage (de-regulation). On the other hand, the project of the internal market could not be convincingly put forward towards its addressees and the people affected by it if it did not recognize and counterbalance negative externalities resulting from de-regulation (re-regulation). Action was hence required in order to make these two conflicting goals work for the sake of the successful establishment of the internal market.

In Cassis de Dijon, the ECJ proposed a solution, which embraced two elements: a concept that has later been labelled as “information paradigm” and a concept that has later been labelled as “principle of mutual recognition” or “principle of equivalence”, which has nowadays matured into the notion of “market access”:

Regarding the first one, the Court explicitly clarified that the protection of the consumer and public health does NOT require mandatory standardization of products: the line of argument that such

standardization of products placed on the market and of their designations (…is) in the interests of a greater transparency of commercial transactions and offers for sale to the public (…) cannot be taken so far as to regard the mandatory fixing of minimum alcohol contents as being an essential guarantee of the fairness of commercial transactions, since it is a simple matter to ensure that suitable information is conveyed to the purchaser by requiring the display of an indication of origin and of the alcohol content on the packaging of products.31

This passage stipulates one solution which sought to solve the arising problems of the conceptual debate on the regulatory framework for the internal market: it identifies a dichotomy of “information-related” vs. “content-related” rules in conjunction with the statement that when a problem has been identified as requiring a regulating measure (i.e., it is assumed that market mechanisms alone are insufficient to ensure the necessary degree of consumer protection, fairness of competition etc.), preference should be given to an information-related rule wherever that seems sufficient to cure the problem.32

The Court then moved on to develop whether in this light the protection of the consumer required a content-related measure: it clearly answered this in the negative:

There is (…) 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; the sale of such products may not be subject to a legal prohibition on the marketing of beverages with an alcohol content lower than the limit set by the national rules.33

This passage reiterated the ethos of the Dassonville-formula, which had already put a significant amount of de-regulatory pressure on Member States.34 If Member States needed to accept products lawfully marketed in other Member States, consumers could realise a comparative advantage from products that could be produced cheaper in other Member States. This passage hence fostered competition of domestic products with other European products and put serious pressure on Member States with inefficient regulation to deregulate in order to stay competitive.35 While this passage hence ensured that internal market law will still be primarily occupied with erasing national obstacles to trade by putting serious pressure on the Member States with regards to the de-regulating function, consumers may still opt-out of the benefits of comparative advantage if they value the external effects as so negative that they do not outbalance the benefits from comparative advantage. If a beer producer from one country seeks market access for its products in another Member State, this Member State must “not prevent the importation of products which have been lawfully manufactured and marketed in other Member States”36. However, if consumers

attribute specific qualities to a product manufactured from particular raw materials, it is legitimate for the member state in question to seek to give consumers the information which will enable them to make their choice in the light of that consideration.37

This acknowledges that domestic laws have a social function, which reacts to the different learning curves of consumers that are to be expected in the different Member States, which result from the previous disparate regulations across the EU.38 In exceptional circumstances only, when the negative externalities are so severe that if a materialization of the risk would put the whole concept of the internal market at risk, Member States may prevent access of products to their domestic market via content-related measures.

Cassis de Dijon hence indeed introduced a new, fundamental concept of internal market harmonization: the fundamental freedoms grant any producer the right to circulate a product, once lawfully marketed in one Member State, freely in any Member State of the EU, in principle regardless of the respective Member State regulations. Disparate regulations may hence generally not hinder the free circulation of such a good, even if they have not yet been harmonized by secondary legislation. Secondary law is hence not needed, as in these areas, the competition of legal orders39 and the deregulatory pressure on non-efficient legal regimes of Member States will over time lead to the harmonization of legal rules at the most efficient level. Such a harmonization by competition of legal orders is, however, not envisaged for regulatory measures that fall within the scope of “mandatory requirements”. Producers have to accept such disparate regulation in Member States. If the EU legal order demands harmonization in these areas, it has to do so proactively via secondary law and within the competence regime of the Treaty. However, the limit to which producers have to accept disparate law in Member States’ legal systems is not endless. Regulatory measures of Member States within the “mandatory requirements” still need to be proportionate.40 This means, as the Court cleared, that whenever an information-related rule is sufficient to cure the problem, it shall be given preference over a content-related rule. In these cases it is hence for the consumer and not for the Member State to choose whether the risk of externalities is greater than the benefits from comparative advantage.

15.2 From Decision to Doctrine—How the Legal Concepts developed From Cassis de Dijon Have Created the Heart and Soul of Internal Market Law

The findings in Cassis de Dijon inspired scholars and the legislature alike. In this respect, several concepts have been developed from the Cassis de Dijon case, which I will lay out in detail in this chapter. Maybe the most influential one has been the principle of “mutual recognition”, which later matured into the notion of “market access” (15.2.1). But Cassis de Dijon inspired developing quite a number of other approaches such as the theory of the information paradigm (15.2.2), the confident consumer (15.2.3), and the “new approach” (15.2.4).

15.2.1 The Principle of (Conditional) “Mutual Recognition”

The Court’s reasoning in paragraph 14 of Cassis de Dijon was later elevated to a general principle dubbed “principle of equivalence” or “principle of mutual recognition.” This principle

means that products/services lawfully put on the market in one Member State can and should be allowed access to the markets in other Member States because they have already satisfied home-state controls.41

It was, however, not without politics that a simple paragraph evolved from a judgment on food law to a principle of EU law.42 While some already see an approval of the principle of equivalence by the Court in Dundalk43 1 year later,44 the “Communication from the Commission regarding the Cassis de Dijon judgment”45 in the same year interpreted paragraph 14 of the judgment in such a way that all national standards were presumed to be equivalent and hence any product produced in accordance with such a national standard would have to have access to the market in all Member States. This communication raised criticism, as many accused the Commission of going much further in its policy statement than the court had ruled.46 Another attack came from people with concern in the deregulatory aspect enshrined in Cassis de Dijon. These critiques deserve special mention here, as the jubilee Hans Micklitz was, among others, one of the main proponents of such a critique47: It starts from the premise that the national competition of standards as fostered by the Cassis de Dijon principle may result in a race to the bottom. This creates a “regulatory gap” at national level, which – in their view – then needs to be filled by Union law.48 The proponents had a point, since we know from Akerlof’s lemon’s market49 that such a competition might indeed result in a decrease of quality standards. Whether this also leads to a decrease of product quality is subject to debate. While Akerlof’s lemon example would also support such a view, case-law practice in the Court points in the opposite direction: in Drei Glocken50 the Court acknowledged evidence that in spite of an increasing liberalization of the pasta market the market shares of pasta made from wheat of higher quality increased.51 A recent study conducted by Anu Bradford goes one step further: Regulatory competition of standards in nation-states may even result in a race to the top: if smaller markets liberalize but bigger markets do not, this may even lead to a “Brussels effect”, where dense regulation of larger markets increasingly dominates more liberalized regulation.52 However, even if a “race to the bottom” is at risk, by introducing the provision of “mandatory requirements”, the Court paid witness to the fact that in some cases the deregulatory aspect needs to be counterbalanced by re-regulation, either at the national or at the Union level. This is why it is important to emphasize that there is no unconditional principle of mutual recognition in EU internal market law.53 For every measure that falls outside of the “mandatory requirements” it is hence comprehensible to make them subject to competition as they may not only be used to (I am here paraphrasing Weatherill’s words) chop down the dead woods of centuries of regulatory traditions in all Member States,54 but also to ensure that European consumers get what they need at the lowest reasonable prize available in the European market. Only in this area, they are able to harvest the benefits from comparative costs’ advantage to the full extent without having to pay for the costs of coping with the negative effects of externalities.

15.2.1.1 The Principle of Mutual Recognition and Internal Market Law of Product Safety Regulation

The ECJ hence wisely furthered and deepened the principle of mutual recognition in its case law. If a beer producer from one country seeks market access for its products in another Member State, this Member State must “not prevent the importation of products which have been lawfully manufactured and marketed in other Member States”55. Hence, it also constitutes a measure of equivalent effect if margarine lawfully produced and packed in an EU Member State needs to be repacked in order to be sold on the Belgian market.56 And if a Mars bar, which complies with rules on fair trade needs to be repacked, because it does not comply with German rules on fair competition, it needs to be qualified as a measure having equivalent effect.57 The Court did not only deepen the principle of mutual recognition. By putting more flesh on its bones, it also widened its application by introducing an “other-reading”58 duty of Member States. It required from Member States not only to recognize products lawfully marketed under other national law. It moreover supported the Commission’s political agenda to make the principle of mutual recognition a corner stone of harmonization as it required from Member States to implement clauses of equivalency in their national laws.59

In the wake of the BSE crisis, however, the principle of mutual recognition in the core of internal market law, which has always been food law,60 was seriously threatened. The BSE—crisis forced EU institutions and Member States to admit that under certain circumstances, such as those where new scientific evidence is available in a crisis, the minimum harmonization approach of the principle of mutual recognition creates negative externalities that are detrimental to the establishment of the internal market. The initial reactions of the EU, which issued draconian measures against the UK, were followed by a chaotic dispute between European institutions, Member States, and country representatives. A back-and-forth process, imposing then loosening regulatory measures at several levels, accompanied this struggle.61 This even convinced the most resistant Member States such as the UK to transfer more power to European institutions in order to provide for common legislation at European level.62 As a result of this experience, the EU issued as a horizontal (!) Regulation (!) the General Food Law and set up the EFSA in Parma in 2002. This approach to govern the whole food law market with a single, directly applicable Regulation was a far cry from the initial idea of governing the food market with the principle of mutual recognition. In recent cases, the ECJ seems to have given up the approach of minimum harmonization completely. Even when interpreting provisions in the General Food Law, it does so with a maximum harmonization approach in terms of uniform consumer protection. In Berger v Bayern, it favoured an interpretation of the information regulation in the General Food Law in the light of consumer protection without even mentioning the fact that consumers’ interest needs to be balanced with the producer’s fundamental right to free movement of foodstuffs.63 However, The ECJ acknowledged that EU authorities may only interfere if the Member States authorities have “ascertained” a threat to the health of consumers.64 By doing this, it somehow counterbalances the cutting back of the principle of mutual recognition by increasingly acknowledging that Member States can voice their concerns by exercising their margin of discretion as to when to interfere. In this sense, the decrease of the principle of mutual recognition results in an increase in the principle of home-country control.

After these developments, some already foresaw the end of the principle of mutual recognition. Indeed, if we look into the area of new governance products such as food and feed, pharmaceuticals and chemicals,65 there is not much left of this principle. Just when most people thought that the principle was dead, the Commission launched the ‘Package on the internal market for goods’ in February 2007,66 which brought the principle of mutual recognition back on the table in internal market law. However, this time, the Union institutions targeted the different harmonization area of ‘new approach’-products, which have formerly developed independently from ‘new governance’ products. Regulation 764/2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State67 (mutual recognition Regulation) as well as its accompanying pieces Regulation 765/200868 and Decision 768/2008/EC69 provide concise directions as to how the mutual recognition of the marketing of ‘new approach’-products shall be organized at both, institutional and substantial level.

In secondary law, the principle of mutual recognition is nowadays applied in its pure sense mainly in the area of ‘new approach’-products. In the area of ‘new governance’-products, and in certain ‘new approach’-products as well, it lives on as a principle of leaving the margin of discretion when to interfere in terms of product safety largely to Member States. While the principle of mutual recognition in its pure sense is hence on the one hand on the decline at least in the area of ‘new governance’-products, it seems to enjoy a renaissance as a principle of “market access” in the interpretation of the “measures having an equivalent effect” of Art. 34 TFEU.70 It refers to the idea that, taken down to its basic rationale, the principle of mutual recognition indeed shall contribute to opening up Member State’s market for products of other Member States, thereby primarily granting them access. In this respect, the Court has correctly targeted the Keck-formula as an arbitrary criterion, which hinders the enforcement of market access. In its constant struggle between the correct application of the Keck-criteria with the Cassis-de-Dijon principle71, in ANETT72 the Court seems to have finally given emphasis on the market access criterion derived from Cassis de Dijon to the detriment of Keck.73 It seems, after a long struggle, that Cassis de Dijon has finally won.74

15.2.1.2 The Principle of Mutual Recognition and External Relations: The Case of Switzerland

The principle of mutual recognition did not stay within the borders of the EU but went on to other jurisdictions such as Switzerland. In 2010, Switzerland implemented the Cassis-de-Dijon principle by autonomous adaptation. Art 16a to 16e of the Technical Barriers to Trade and the Marketing of Products on the basis of international regulations incorporated the principle of mutual recognition into Swiss federal law. The officially communicated reason was an expected decrease of prices for consumer products, especially for foods, in Switzerland.75 The Swiss authorities hence planned to benefit from the comparative advantages promised by the introduction of the Cassis-de-Dijon principle. However, the Swiss did not adopt the principle pars pro toto. Some products such as foodstuffs are subject to mandatory authorization and the reasons for justification of non-marketing have to comply with a black list.

15.2.1.3 The Principle of Mutual Recognition and The Area of Freedom, Security and Justice

The principle of mutual recognition did not only travel beyond the borders of the EU, it also travelled from internal market law to the area of Freedom, Security and Justice. The European Arrest Warrant brought to light the need to balance between mutual recognition of national warrants on the one hand and individual fundamental rights in the EU on the other; an issue that internal market lawyers have been dealing with since the 1970s.76 Shortly after, the European Council endorsed in its Tampere Programme in 1999 the principle of mutual cooperation as the future “cornerstone of judicial co-operation in both civil and criminal matters within the Union”77. The Hague Programme in 2004 went even further by asking for a comprehensive approach to implement the principle of mutual recognition in all phases of criminal proceedings to be developed.78 In the area of freedom, security and justice, however, the principle of mutual recognition only gained treaty recognition after the Lisbon Treaty entered into force on December 1st 2009. To this end, Art. 82 TFEU now explicitly recognizes the principle of mutual recognition as a cornerstone of the judicial cooperation in criminal law.

15.2.2 The Information Paradigm

While it is common knowledge that the Cassis de Dijon case triggered the principle of mutual recognition, significantly lower attention was attributed to the idea that it also triggered a concept that was later called the “information paradigm”.79 According to this notion, as the internal market is characterized by differentiated and fragmented conditions, it might only operate effectively to the benefit of all market players and to the society as a whole if the consumers who were on the one hand enriched with a wider choice of products had on the other hand to bear the burden of perceiving and processing information which were relevant to decide which product actually could meet their preferences.80 By and large it shall be considered sufficient to ensure, for reasons of consumer protection, free access to information which might be relevant for a rational transaction decision. 81

One of the reasons why the “information paradigm” was not taken up to the same extent as the principle of mutual recognition might be that the connection between preference of information regulation over content-related regulation might not be evident at first sight. Indeed, the ECJ originally developed this concept as an expression of the principle of proportionality with regard to the interpretation of the free movement of goods (Article 34 TFEU) and therefore as a standard of Union law confining domestic law that establishes obstacles to free trade. However, subsequently the Court also applied the same yardstick to construe which practices may be considered “deceptive” under secondary law that aimed at harmonizing domestic protective standards in order to ensure free trade in the internal market.82 This spill-over of the consumer concept from the interpretation of a fundamental freedom to legislative internal market activities of the Union, that is, from the de-regulatory to the re-regulatory aspect of internal market law, is consequent. As most of this legislation is based on Art. 114 TFEU, secondary internal market legislation in principle follows the same rationale. Furthermore, it has to be regarded as settled law that not just the national legislatures but also the institutions of the Union are bound by the fundamental freedoms.83

The “information paradigm” reflected insights from economic regulation at this time. Several reasons were brought forward in economics that established a general preference of information-related over content-related regulation: in microeconomic price theory it had already been knowledge for a long time that for markets to function, market players must obtain adequate information on prices and quality of marketed products. In the 1970s economists started to focus on information deficits as a potential reason for market failure, and on possible remedies to counter such risks. Akerlof famously described in his seminal paper on “lemon markets” the mechanism whereby informational deficits on the part of consumers due to prohibitively high search costs generate a risk of adverse selection among available products, resulting in a failure of the market to provide high quality goods.84 It is basically this theory that provides the economic justification to regulate markets if market mechanisms such as signalling through advertisement, labelling and other instruments, reputational mechanisms or information intermediation,85 do not suffice to provide for an adequate level of product-related information, or where market players are rationally ignorant of available information due to prohibitively high costs or cognitively inapt to perceive and process available information.

Though the early protagonists of an information paradigm for internal market regulation could not yet appreciate the insights of cognitive psychology, behavioural economics or other disciplines on characteristics of human behaviour, as they were taken up only during the last decade or so by legal writers, they were certainly not naïve as to the realities of consumers’, investors’ or other market players’ individual capacity to process information and to reach rational decisions on that basis. Steindorff, for instance, made it clear that his concept had to be understood as a normative one when he wrote that the internal market “demanded” a circumspect consumer. It is for the sake of internal market integration that market players should bear the burden of perceiving and processing information, and also the drawbacks that may follow should they carry out a market transaction suffering a cognitive deficit.86

As this “information paradigm” followed from Cassis de Dijon, it was first taken up in the area of food law. In Rau87, the ECJ made explicit that, in order to enable consumers to distinguish between margarine and butter, it shall suffice to ask for information legislation instead of repackaging. Consumers are protected “just as effectively by other measures, for example by rules on labelling, which hinder the free movement of goods less.”88 It continued to emphasize this priority of information regulation in the beer purity case. 89 Consumers would be protected sufficiently from misleading practices “by the compulsory affixing of suitable labels giving the nature of the product sold.”90 When EU law moved from case to codex in food law in 2002, the information paradigm was recognized as one of the cornerstones of EU food legislation: Art. 8 of the General Food Law explicitly stipulates that consumer protection in food law is primarily geared towards “providing a basis for consumers to make informed choices”. This is also the reason why the major bunch of regulatory measures available in food law are information-related. The General Food Law grants to EU institutions, as well as executing Member State administration, mainly information rights and duties. Despite the fact that Art. 14 General Food Law requires all foods that are marketed on the EU market not to be unsafe; the main tool available for regulators in order to ensure the safeness of foods is information regulation. The chamber of horrors with product bans etc. is only available in special circumstances, such as those of genetically modified foods or in the wake of a crisis. EU Regulation 1169/2011 confirms the fact that the “permit but inform” logic still forms the major regulatory method on the provision of food information to consumers, which will apply starting from December 13th 2014.91

The information paradigm did not stay in food law, but travelled on to other market areas. While it is plausible to extend this approach to other search and experience goods such as chemicals or pharmaceuticals, the information paradigm has also formed a cornerstone in the area of credence goods on the financial market. While information regulation at EU level is conventionally justified by consideration of economic theory92, it is often overlooked that legislation in financial market regulation in the EU does not refer to the general economic rationale of intervention into financial markets that are also used at the nation-state level. While some statements read in isolation might lead to such a conclusion, a look into the large bunch of financial market regulations brings to light that it is actually the “information paradigm” created in Cassis de Dijon which forms the basis for regulatory intervention. To this end, for example recital (21) of Directive 2003/71/EC (Prospectus Directive)93 stipulates that “[i]nformation is a key factor in investor protection.” Recital (18) of the Prospectus Directive becomes even more concrete:

The provision of full information concerning securities and issuers of those securities promotes, together with rules on the conduct of business, the protection of investors.

While these provisions could still be justified by free-standing regulatory theory, recital (52) Life Insurance Directive94 makes unambiguously clear that the Cassis-de-Dijon-like information paradigm forms the basis for information regulation in financial market law. It stipulates that

[i]n an internal market for assurance the consumer will have a wider and more varied choice of contracts. If he/she is to profit fully from this diversity and from increased competition, he/she must be provided with whatever information is necessary to enable him/her to choose the contract best suited to his/her needs.

15.2.3 The Confident Consumer

Closely related to the “information paradigm” is the concept of the “confident consumer”. It draws on the normative basis that by and large it shall be considered sufficient to ensure for reasons of consumer protection free access to information, which might be relevant for a rational transaction decision. Based on these insights gained from the Cassis de Dijon case, authors such as Steindorff,95 Weatherill,96 and Wilhelmsson97 developed at a more abstract level which normative “internal market player” is assumed in EU law. In this sense, in the internal market context, consumer protection and unfair competition law had to be interpreted instrumentally and hence, reconciled with the normative objectives to foster free trade and the integration of the national markets. Especially Steindorff made it clear that, according to this notion, the internal market “demanded” such a circumspect consumer.98 They hence proposed in the context of the internal market the concept of a confident consumer as an antithesis to the concept of a weak and vulnerable consumer.99 Thus, protection against deceptive practices, for instance, must not take the ignorant consumer as a yardstick since such an approach would ultimately require the prescription of uniform products.100

The concept was not developed out of the blue, but relied on and was reflected by the ECJ’s case law on a “reasonably well-informed and reasonably observant and circumspect” consumer.101 To be sure, also this ECJ’s concept has to be regarded as a normative one. This insight is supported by the fact that the ECJ on various occasions denied the deceptive potential of a commercial communication without considering its actual perception by the addressees in question.102 It is against the background of these cases that the jubilee Hans Micklitz has widened the concept of the confident consumer to also cover the protection of legitimate expectations.103 The normative concept of the “confident consumer”104 was of relevance as long as internal market regulation was mainly concerned only with the realization of the fundamental freedoms. Hans Micklitz has pointed to the fact that internal market law has meanwhile adopted other, more social values, which need to be taken into account as legitimate expectations of the consumer in the concept of the “confident consumer”.105 Indeed, internal market law has matured to also encompass principles, basic rights and citizenship rights,106 which have to be reflected also in the normative concept of EU consumer law.107 It becomes evidently clear that consumers can only fulfil their duties as a functional player on the internal market if EU law equips them also with the means consumers need in order to fulfil this function. The imperative of the realization of the internal market demands specific requirements that go beyond the features of nation-state citizens. This results, however, in no competence norm to equip the confident consumer with all kinds of rights, as this would lead to unlimited competences of the EU in consumer protection legislation.108 One shall be reminded that the concept of the functional consumer has always been tied to and may henceforth not go beyond the level of realization of the internal market.109 The ‘social law’ of the EU internal market mainly materializes through justifications for infringements of fundamental freedoms.110 The case law of the CJEU on these justifications hence serve as a starting point for determining which legitimate expectations may be protected in consumer law.111

15.2.4 The “New Approach”112

The new harmonization method introduced by the Cassis de Dijon case triggered also a switch in secondary legislation in product safety law. As there was huge uncertainty about the constitutional basis of EU product safety regulation, the only method that seemed justifiable at the time before Cassis de Dijon was the application of classic, problem-related command-and-control measures, which harmonized existing Member State regulation in this respect.

Such a method was at that time undoubtedly justified by Art. 36 TEEC (now Art. 36 TFEU), which allowed the Union to establish measures that hindered the free trade of goods which were harmful to the health and life of human beings.113 The harmonizing measures were to be adopted according to Art. 100 TEEC (now Art. 114 TFEU), which then ‘europeanised’ these protective measures.114

With regard to consumer products, Art. 36 TFEU and the Cassis de Dijon—judgment could hence be interpreted as asserting that the freedom of goods is only applicable to products that do not form a hazard to the health and safety of consumers.115 To this end, harmonizing measures by the EU according to Art. 100 TEEC (now Art. 114 TFEU) needed to reflect this change in the understanding of the European market with regard to the free movement of goods, as it obliges the Union to establish measures within the European market for goods which safeguard the rights mentioned in both Art. 36 TEEC (now Art. 36 TFEU) and the Cassis de Dijon judgment. However, as the ECJ made clear through its clear statement for a preference for information-related over content-related rules,116 these measures have to be in conformity with the EU’s market-establishing agenda, which also led to understand the ‘new approach’ as an efficiency-driven instrument rather than focusing on individual protection. This change in approach of the ECJ has hence provided the basis for the introduction of more conceptual and systematic EU product safety regulation, for example through the ‘new approach’ at European level.117

The ‘new approach’ went into full swing after the ECJ explicitly approved this type of regulation in 1980.118 It thereby opened the doors for the wider risk-based concept of the ‘new approach’ to apply to other areas and paved the way for the ‘new approach’ to become the systematic logic behind a significant body of EU legislation on product safety. Thus, the ‘new approach’ was the first systematic regulation to be applied to several product groups.119

The new understanding of the European constitution after the Dassonville and Cassis de Dijon judgments furthermore triggered systematization of EU product safety regulation at post-market level. As to the principle of home-country control, systematic post-market control has never been perceived as feasible. However, even before the introduction of the ‘new approach’ there was an increasing realization that only pre-market measures such as those in the ‘new approach’120 would not suffice and could not ensure European product safety at EU level as a precondition for wider markets. European regulation that also governs the lifecycle of the product after its introduction to the market—so-called post-market regulation—has hence been envisaged.

The then new ‘Cassis de Dijon’-logic provided a means of understanding the European economic constitution to facilitate systematized regulation also at the post-market level. Supporters of this idea highlighted the fact that the enabling of a free market for virtually all products in Europe through the ‘Cassis de Dijon’—judgment came about in response to the need for European measures to facilitate the removal of hazardous products from the market.121 Art. 36 TFEU and the ‘Cassis de Dijon’—judgment have made clear that the freedom of goods is only applicable to products that do not constitute a hazard to the health and safety of consumers. As the aforementioned critics claim, if it was left to the Member States to establish post-market measures, the result would be a divergence of the marketing of hazardous products. Such divergence would be contrary to the goal of the single-market integration, which enabled the free movement of goods only to the extent that they did not impose a hazard to consumers.122

The Council finally adopted this view and, at the same time the ‘new approach’ was introduced broadly to EU product safety regulation, enacted, on the proposal of the Commission in 1985, the ‘Product Liability Directive’ 85/374/EEC.123 Within this Directive, the Council understood post-market control in a wide sense, covering not only classical post-market administrative supervision, but also, and in line with the ‘regulation through litigation’—approach,124 rules on product liability. It hence introduced a strict liability regime for the producer of a defective product,125 and its application was widened to apply to agricultural and fishery products in the aftermath of the BSE scandal.126

In addition to these acts on litigation, the Council adopted Directive 92/59/EEC on General Product Safety in 1992 after a proposal from the Commission.127 While the previous pushes into systematization at European level had either been the drawing of non-binding conceptions such as the ‘new approach’ or the setting of cautious horizontal benchmarks such as the ‘Product Liability Directive’, this Directive introduced for the first time binding horizontal measures for the whole European market system of consumer products. According to its Art. 3, manufacturers of products have been obliged to produce only ‘safe’ products. In order to effectively enforce this obligation, the General Product Safety Directive also introduced classic regulations on administrative market surveillance. Besides some action towards pre-market regulation, the Directive obliges Member States to supervise the safety of products and empowers them to take specific measures. Inter alia, these measures included the issuance of warnings and the withdrawal of products. It also introduced a notification system to the Commission and a Union-wide system of withdrawal of products in case of urgency,128 which has been affirmed by the ECJ.

The European institution’s political agenda to widen the “new approach” also to enforcement came fully to light when the Commission issued a 1994 Communication to ensure the uniform enforcement of Union legislation across all Member States.129 As a result, several measures were taken in order to assure coherency in the enforcement of Member State action.130 Most notably in the areas of ‘new approach’-products and foodstuffs, a communication system between Member State and European authorities was established, which also involved the establishment of common frameworks.131 Furthermore, a consistent approach to product testing by laboratories in the area of ‘new approach’-products was introduced,132 and the exchange133 or unofficial cooperation134 of staff was facilitated.

By the end of the twentieth century, EU institutions widened this new approach of product safety to areas that in nation states regularly belong to their private or civil law systems. Art. 2 (1) of Directive 1999/44/EC135 required the seller to “deliver goods to the consumer which are in conformity with the contract of sale”. Conformity was according to Art. 2 (2) of Directive 1999/44/EC presumed if they met certain objective criteria such as compliance with the description of the product by the seller. Again, Directive 1999/44/EC makes use of the ‘new approach’s incentive mechanism to ensure the safeness of products. The seller has a general duty to deliver only products which are in conformity with the contract. However, he benefits from a switch in the burden of proof if he is able to make clear that he fulfils the requirements set out in Art. 2 (2) of Directive 1999/44/EC. It is interesting to note that this ‘new approach’ rationale has not been realized in the implementing measure of any of the Member States, who have interpreted this Directive as granting mainly consumer rights.

In 2001 the Parliament and the Council on the proposition of the Commission took the chance to widen the scope of application of the ‘new approach’ to nearly all kinds of consumer products and the introduction of new post-market measures by adopting Directive 2001/95/EC,136 which amended Directive 92/59 “in several aspects”.137 The system of post-market measures was intensified, as it introduced, inter alia, a recall system for products already being on the market, and a consumer’s right to information, as well as providing the Commission with more power to act in case of emergencies. With regard to its pre-market application, the ‘new approach’ system—with minor modifications—was widened to apply to nearly all products of consumer safety through Directive 2001/95/EC on ‘general product safety’ (see especially Art. 3 Directive 2001/95/EC). However, products that were already successfully and comprehensively regulated on account of a different standardization process, for example foodstuffs, pharmaceuticals and chemicals, were left out of the scope of regulation of the ‘new approach’,138 even after it was widened to apply to most consumer products (see Art. 1 (2) Directive 2001/95/EC).

In cases where consumer products that are not supervised by European agencies or where supervisory competences of these agencies fall behind the respective requirements set out in Directive 2001/95/EC, there is a need for supervision by Member State institutions. This principle was first introduced by Directive 92/59/EEC and then amended nearly 10 years later through Directive 2001/95/EC. According to Art. 6 (2, 3) of Directive 2001/95/EC Member States need to

“establish or nominate authorities competent to monitor the compliance of products with the general safety requirements and arrange for such authorities to have and use the necessary powers to take the appropriate measures incumbent upon them under this Directive”. They shall furthermore “define the tasks, powers, organisation and cooperation arrangements of the competent authorities”.

The next step of intensification of the “new approach” was taken in 2008, when the Union introduced the ‘New Legislative Framework for the marketing of products’.139 To this end, the European Parliament and the Council issued several acts in 2008.140 Although, the ‘new approach’ had already introduced systematic regulatory logics to the respective product areas, this ‘new legislative framework’ emphasized their horizontal application with legally binding force to each agent of the ‘new approach’ regime. Decision No. 768/2008/EC and Regulation (EC) No 765/2008 are of special importance in this respect. Art. 1 (2) of Decision No. 768/2008/EC clearly emphasises the economic operator’s responsibility to only market safe products. Art. 2 of Decision No. 768/2008/EC then indicates that this Decision forms a constructed model for the governance of this really responsive regulation:

This Decision sets out the common framework of general principles and reference provisions for the drawing up of Community legislation harmonising the conditions for the marketing of products (Community harmonisation legislation).

Community harmonisation legislation shall have recourse to the general principles set out in this Decision and to the relevant reference provisions of Annexes I, II and III. However, Community legislation may depart from those general principles and reference provisions if that is appropriate on account of the specificities of the sector concerned, especially if comprehensive legal systems are already in place.

Likewise, Art. 1 (1) of Regulation (EC) No 765/2008 highlights its function as constructing a model for the operation of conformity assessment bodies:

This Regulation lays down rules on the organisation and operation of accreditation of conformity assessment bodies performing conformity assessment activities.

Furthermore, the framework Regulation (EC) No. 765/2008 also stipulated general requirements for the post-market surveillance system. It introduced basic requirements for the institutional organization of surveillance bodies (Art. 18 of Regulation (EC) No. 765/2008) and for the measures they need to be equipped with (Art.19 of Regulation (EC) No. 765/2008). Additionally, it stipulates information requirements for European bodies (Art. 17, 22, 23 of Regulation (EC) No. 765/2008) and provides for a cooperation network between Member State and European entities (Art. 24-26 of Regulation (EC) No. 765/2008).

15.3 Conclusion

In this contribution I was able to validate the thesis formulated by Hans Micklitz in his early years. The Cassis de Dijon case, with a little help from the Commission, has indeed fundamentally changed the concept of internal market regulation and continues to do so today at various levels. It built the cornerstone of a new understanding of harmonization at European level.141 It provided the EU legal system for the first time to develop specifically autonomous EU legal concepts such as the ‘(conditional) principle of mutual recognition’, the ‘confident consumer’, and the ‘information paradigm’, which could neither be explained by the EU law’s heritage from international law, nor through functional comparison as one of the prevailing methods for law interpretation in the EU. The concepts derived from Cassis de Dijon hence provided EU law for the first time with its own identity and regulatory logic.

Footnotes

  1. 1.

    See S Vogenauer, ‘An Empire of Light? II: Learning and Lawmaking in Germany Today’ (2006) 26 Oxford Journal of Legal Studies 627.

  2. 2.

    Now officially named ‘Court of Justice of the European Union’, see Arts 251 ff TFEU. Hereinafter I will refer to it as ‘the Court’ or the ‘ECJ’.

  3. 3.

    Case 120/78 REWE v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649.

  4. 4.

    K 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.

  5. 5.

    S Weatherill, ‘Why there is no ‘principle of mutual recognition’ in EU law (and why that matters to consumer lawyers)’, in this volume, emphasises the risks that may follow if one does not emphasize the conditionality of the principle of mutual recognition.

  6. 6.

    See K Purnhagen, The Politics of Systematization in EU Product Safety Regulation (Dordrecht, Springer, 2013) 10.

  7. 7.

    See on the historical roots of classical free trade theory DA Irwin, Against the Tide: An Intellectual History of Free Trade (Princeton, Princeton University Press, 1996).

  8. 8.

    D Ricardo, On the Principles of Political Economy and Taxation (London, John Murray, 1817) Chapter 7.

  9. 9.

    See W Molle, The Economics of European Integration, 5th ed (Columbus, McGraw-Hill, 2006) 35 f and 67.

  10. 10.

    This is reflected, eg, in recital (4) Dir 2007/64/EC on payment services in the internal market, [2007] OJ L319/1: ‘It is vital, therefore, to establish at Community level a modern and coherent legal framework for payment services […] which is neutral so as to ensure a level playing field for all payment systems, in order to maintain consumer choice, which should mean a considerable step forward in terms of consumer cost, safety and efficiency, as compared with the present national systems.’

  11. 11.

    Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837.

  12. 12.

    See for a comprehensive study on the the regulative practice at that time C Joerges, J Falke, H-W Micklitz and G Brüggemeier, Die Sicherheit von Konsumgütern und die Entwicklung der Europäischen Gemeinschaft (Baden-Baden, Nomos, 1988) 252 ff.

  13. 13.

    See R Tricker, CE Conformity Marking and New Approach Directives (Oxford MA, Butterworth-Heinemann, 2000); C Hey, K Jacob and A Volkery, ‘Better regulation by new governance hybrids? Governance models and the reform of European chemicals policy’ (2007) 15 Journal of Cleaner Production 1861.

  14. 14.

    T Ackermann, ‘Buying Legitimacy? The Commission’s Proposal on Consumer Rights’ (2010) 21 European Business Law Review 589.

  15. 15.

    C Barnard, The Substantive Law of the EU, 4th ed (Oxford, Oxford University Press, 2013) 75.

  16. 16.

    See Case 3/76 Kramer [1976] ECR 1279. The second qualification that the rule had to be ‘enacted by the Member States’ did not have much disclosure power in practice, see Barnard, The Substantive Law of the EU, 76 f.

  17. 17.

    Barnard, The Substantive Law of the EU, 74.

  18. 18.

    D Chalmers, G Davis and G Monti, European Union Law, 2nd ed (Cambride, CUP, 2010) 748 f.

  19. 19.

    Barnard, The Substantive Law of the EU, 75.

  20. 20.

    See more elaborately K Tuori, ‘European social constitution: between solidarity and access justice’, in this volume.

  21. 21.

    Barnard, The Substantive Law of the EU, 75.

  22. 22.

    For a comprehensive overview to this criticism see Joerges et al. Die Sicherheit von Konsumgütern, 273 ff., who also provide a massive account of data in order to substantiate the criticism.

  23. 23.

    Lord Cockfield hit the nail on the head at a speech delivered in London on 22 February 1988 to the Federation of British Electrotechnical and Allied Manufacturers, where he described the concept of this European command-and-control regulation as ‘If it moves, harmonise it!’, cited after A McGee and S Weatherill, ‘The Evolution of the Single Market: Harmonisation or Liberalisation’ (1990) 53 The Modern Law Review 583.

  24. 24.

    McGee and Weatherill, ‘The Evolution of the Single Market’, 582.

  25. 25.

    Commission White Paper ‘Completing the Internal Market’, COM(85) 310 final; Commission Communication on the Development of European Standardization (“Green Paper”) of 16 October 1990, [1991] OJ C20/1 and Commission Communication on Standardization in the European Economy, [1992] OJ C96/2. In a larger context from today’s view: D Trubek and L Trubek, ‘New Governance & Legal Regulation: Complementarity, Rivalry, and Transformation’ (2007) 13 Columbia Journal of European Law 539; D Hanson, CE Marking, Product Standards and World Trade (Cheltenham, Edward Elgar, 2005) 37.

  26. 26.

    See eg the Opinion of Justice Cardozo, Supreme Court of the USA, Baldwin, Commissioner of Agriculture and Markets, et al v. G.A.F. SEELIG, Inc., March 4, 1935.

  27. 27.

    Case 120/78 Cassis de Dijon, para 8.

  28. 28.

    ibid.

  29. 29.

    ibid.

  30. 30.

    ibid, para 13: ‘(T)he fixing of limits in relation to the alcohol content of beverages may lead to the standardization of products placed on the market and of their designations, in the interests of a greater transparency of commercial transactions and offers for sale to the public.’

  31. 31.

    ibid, para 13.

  32. 32.

    See JA Usher, ‘Disclosure Rules (Information) as a Primary Tool in the Doctrine on Measures Having an Equivalent Effect’ in S Grundmann, W Kerber and S Weatherill (eds), Party Autonomy and the Role of Information in the Internal Market (Berlin, de Gruyter, 2001) 151, 152 f.

  33. 33.

    Case 120/78 Cassis de Dijon, para 14.

  34. 34.

    H Schepel, The Constitution of Private Governance (Oxford, Hart, 2007) 27.

  35. 35.

    Barnard, The Substantive Law of the EU, 20, 94.

  36. 36.

    Case 178/84 Commission v Germany (Reinheitsgebot) [1987] ECR 1227, para 35.

  37. 37.

    ibid, Summary, para 3.

  38. 38.

    See in this respect on the example of health claims H Bremmers, B van der Meulen and K Purnhagen, ‘Multi-Stakeholder Responses to the European Union health claims Commission’ (2013) 13 Journal on Chain and Network Science 161, 163.

  39. 39.

    See Barnard, The Substantive Law of the EU, 20, 94.

  40. 40.

    Very clearly in this respect Case 261/81 Rau [1982] ECR 3961, para 12.

  41. 41.

    Barnard, The Substantive Law of the EU, 656.

  42. 42.

    K 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.

  43. 43.

    Case 45/87 Commission v Ireland (Dundalk) [1988] ECR 4929.

  44. 44.

    M Dauses and A Brigola, ‘Grundregeln’ in M Dauses (ed), Handbuch des Europäischen Wirtschaftsrechts, 31st del (Munich, CH Beck, 2012) para 120. In fact, the judgment still followed the old method of non-discrimination.

  45. 45.

    [1980] OJ C 256/2, see for an evaluation L Gormley, ‘Cassis de Dijon and the Communication from the Commission’ (1981) 6 European Law Review 454.

  46. 46.

    See M Egan, Constructing a European Market (Oxford, Oxford University Press, 2001) 109; R Barents, ‘New developments in measures having equivalent effects’ (1981) 18 Common Market Law Review 271. Criticism about the political dimension of the interpretation of the judgments Cassis de Dijon and Dassonville continues until to date, see eg N Bernard, ‘On the Art of Not Mixing One’s Drinks: Dassonville and Cassis de Dijon Revisited’ in M Maduro and L Azoulai (eds), The past and future of EU law (Oxford, Hart, 2010) 457.

  47. 47.

    Joerges et al., Die Sicherheit von Konsumgütern, 294 with further reference

  48. 48.

    Ibid, 294 with further reference

  49. 49.

    G Akerlof, ‘The Market for “Lemons”: Quality Uncertainty and the Market Mechanism’ (1970) 84 Quarterly Journal of Economics 488.

  50. 50.

    Case 407/85 Drei Glocken GmbH v USL Centro-Sud [1988] ECR 4233.

  51. 51.

    ibid, para 27.

  52. 52.

    A Bradford, ‘The Brussels Effect’ (2012) 107 Northwestern University Law Review 1.

  53. 53.

    S Weatherill, ‘Why there is no ’principle of mutual recognition’, in this contribution, emphasises the risks that may follow if one does not emphasize the conditionality of the principle of mutual recognition.

  54. 54.

    S Weatherill, ‘Pre-emption, harmonisation and the distribution of competence’ in C Barnard and J Scott (eds), The Law of the Single European Market: Unpacking the Premises (Oxford, Hart Publishing, 2002) 49.

  55. 55.

    Case 178/84 Reinheitsgebot, para 35.

  56. 56.

    Case 261/81 Rau.

  57. 57.

    Case C-470/93 Verein gegen Unwesen in Handel und Gewerbe Köln v Mars [1995] ECR I-1936, para 13.

  58. 58.

    K Armstrong, ‘Mutual Recognition’ in Barnard and Scott (eds), The Law of the Single European Market, 231.

  59. 59.

    See eg § 54 of the German Food Code.

  60. 60.

    Since the foundation of the European Communities, ‘the harmonisation of the European food market ranked high on the agenda’ of the respective European organisations as a means of coping with diverging safety standards throughout Europe, see S Krapohl, ‘Thalidomide, BSE, and the single market: An historical-institutionalist approach to regulatory regimes in the European Union’ (2007) 46 European Journal of Political Research 38.

  61. 61.

    C Joerges, ‘Law, Science and the Management of Risks to Health at the National, European and International Level—Stories on Baby Dummies, Mad Cows and Hormones in Beef’ (2001) 7 Columbia Journal of European Law 6 ff. with further reference.

  62. 62.

    See for an in-depth analysis Krapohl, ‘Thalidomide, BSE, and the single market’, 39, P Shears, F Zollers and S Hurd, ‘Food for Thought: What Mad Cows Have Wrought With Respect to Food Safety Regulation in The EU And UK’ (2001) 103 British Food Journal 63, each with further reference.

  63. 63.

    See judgment of 11 April 2013, Case C-636/11 Karl Berger v Freistaat Bayern, not yet reported. See in this respect also K Purnhagen, ‘Beyond Threats to Health: May Consumers’ Interest in Safety Trump Fundamental Freedoms in Information on Foodstuffs?’ (2013) 38 European Law Review 711.

  64. 64.

    See Case C-636/11 Karl Berger v Freistaat Bayern; Case C-470/03 AGM-COS.MET [2007] ECR I-2749; see also Purnhagen, ‘Beyond Threats to Health’, 717.

  65. 65.

    For the terminology of ‘new governance’ and ‘new approach’ products see Purnhagen, The Politics of Systematization, 3-6.

  66. 66.

    COM(2007)35.

  67. 67.

    OJ 2008 L 218/21.

  68. 68.

    OJ 2008 L 218/30.

  69. 69.

    OJ 2008 L 218/82.

  70. 70.

    See in this respect J Snell, ‘The notion of market access: a concept or a slogan?’ (2010) 47 Common Market Law Review 437; M Jesse, ‘What about Sunday Trading…? The Rise of Market Access as an Independent Criterion under Article 34 TFEU’ (2012) 3 European Journal of Risk Regulation 437.

  71. 71.

    See for an overview on how this struggle translated into the notion of ‘market access’ Barnard, The Substantive Law of the EU, 18-25, 102–108.

  72. 72.

    Judgment of 26 April 2012, Case C-456/10 ANETT, not yet reported.

  73. 73.

    See Jesse, ‘What about Sunday Trading…?’, 437; K Purnhagen, ‘Anmerkung’ (2012) Juristenzeitung 742.

  74. 74.

    See for a more elaborate analysis Weatherill, ‘Why there is no ’principle of mutual recognition’ in EU law’; also Jesse, ‘What about Sunday Trading…?’, 437; Purnhagen, ‘Anmerkung’, 742.

  75. 75.

    See Botschaft zur Teilrevision des Bundesgesetzes über die technischen Handelshemmnisse vom 25. Juni 2008, 7275, www.admin.ch/opc/de/federal-gazette/2008/7275.pdf.

  76. 76.

    From this perspective, it hence makes sense that the area of freedom, security and justice and internal market law were lumped together in the Lisbon Treaty.

  77. 77.

    European Council, 15 and 16/10/1999, Tampere, Presidency Conclusions.

  78. 78.

    Commission Communication The Hague Programme: ten priorities for the next five years. The Partnership for European renewal in the field of Freedom, Security and Justice, COM(2005) 184 final, [2005] OJ C 236.

  79. 79.

    E Steindorff, EG-Vertrag und Privatrecht (Baden-Baden, Nomos, 1996) 195 f. The notion of an ‘information model’ in the internal market context has subsequently been taken up by several authors, see inter alia the articles in S Grundmann, W Kerber, and S Weatherill (eds), Party Autonomy and the Role of Information in the Internal Market (Berlin, de Gruyter, 2001).

  80. 80.

    See also Franck and Purnhagen, ‘Homo Economics’, 336 f.

  81. 81.

    ibid.

  82. 82.

    Case C-315/92 Verband Sozialer Wettbewerb v Clinique Laboratories and Estée Lauder [1994] ECR I-317, para 16; Case C-77/97 Österreichische Unilever v Smithkline Beecham Markenartikel [1999] ECR I-431, para 27; Case C-99/01 Linhart and Biffl [2002] ECR I-9375, para 26.

  83. 83.

    Case C-51/93 Meyhui v Schott Zwiesel Glaswerke [1994] ECR I-3879, para 11.

  84. 84.

    Akerlof, ‘The Market for “Lemons”’; previously, EH Chamberlin, ‘The Product as an Economic Variable’ (1953) 68 Quarterly Journal of Economics 1, 24–27, had already described the risk of adverse selection due to consumers’ ignorance of product quality.

  85. 85.

    See for an overview on market mechanisms that may counter informational deficits J-U Franck, Europäisches Absatzrecht (Berlin, de Gruyter, 2006) 190–203.

  86. 86.

    Steindorff, EG-Vertrag und Privatrecht, 195 f.

  87. 87.

    Case 261/81 Rau.

  88. 88.

    ibid, para 12.

  89. 89.

    Case 178/84 Reinheitsgebot.

  90. 90.

    ibid, para. 32.

  91. 91.

    Reg (EU) No 1169/2011 on the provision of food information to consumers, [2011] OJ L 304/18.

  92. 92.

    See eg G Spindler, ‘Behavioural Finance and Investor Protection Regulations’ (2011) 34 Journal of Consumer Policy 315.

  93. 93.

    Dir 2003/71/EC on the prospectus to be published when securities are offered to the public and admitted to trading, [2003] OJ L 345/64.

  94. 94.

    Dir 2002/83/EC concerning life assurance, [2002] OJ L 345/1.

  95. 95.

    Steindorff, EG-Vertrag und Privatrecht, 195.

  96. 96.

    See S Weatherill, ‘The evolution of European consumer law: from well informed consumer to confident consumer’ in H-W Micklitz (ed), Rechtseinheit oder Rechtsvielfalt in Europa? (Baden-Baden, Nomos, 1996) 423.

  97. 97.

    T Wilhelmsson, Social Contract Law and European Integration (Aldershot, Dartmouth Publishing, 1995) 145 f.

  98. 98.

    Steindorff, EG-Vertrag und Privatrecht, 195 f.

  99. 99.

    See inter alia the articles in Grundmann, Kerber and Weatherill (eds), Party Autonomy.

  100. 100.

    AG Capotorti, opinion of 16 January 1979, Case 120/78 Cassis de Dijon: ‘But the idea of this widespread, if not general, incapacity on the part of the consumer seems to me to doom to failure any effort to protect him, unless it be to impose upon him a single national product the composition of which is constant and is rigorously controlled.’

  101. 101.

    The ECJ has consistently used this wording since its judgment in Case C-210/96 Gut Springenheide and Tusky v Oberkreisdirektion Steinfurt [1998] ECR I-4657, para 37. Prior to this decision the Court had already referred to the ‘[r]easonably circumspect consumer’ as yardstick, Case C-470/93 Mars, para. 13: ‘Reasonably circumspect consumers may be deemed to know that there is not necessarily a link between the size of publicity markings relating to an increase in a product’s quantity and the size of that increase.’

  102. 102.

    Case C-238/89 Pall [1990] ECR I-4827, paras 18–21; Case C-315/92 Estée Lauder, paras 19–23; Case C-465/98 Darbo [2000] ECR I-3397, paras 21–34; Case C-99/01 Linhart and Biffl [2002] ECR I-9375, paras 31–35.

  103. 103.

    H-W Micklitz, ‘Legitime Erwartungen als Gerechtigkeitsprinzip des europäischen Privatrechts’ in L Krämer, H-W Micklitz and K Tonner (eds), Recht und diffuse Interessen in der Europäischen Rechtsordnung: Liber amicorum Norbert Reich (Baden-Baden, Nomos, 1997) 245.

  104. 104.

    See on the normativity and its reasons also Franck and Purnhagen, ‘Homo Economics’, 337 f.

  105. 105.

    Micklitz, ‘Legitime Erwartungen als Gerechtigkeitsprinzip des europäischen Privatrechts’, 245.

  106. 106.

    M Hesselink, ‘Are we Human Beings or Mere Consumers?’ (2006) 12 European Voice 38.

  107. 107.

    Franck and Purnhagen, ‘Homo Economics’, 337 f; M Hesselink, ‘European Contract Law: A Matter of Consumer Protection, Citizenship, or Justice?’ (2007) 15 European Review of Private Law 323, 327.

  108. 108.

    W-H Roth, ‘Europäischer Verbraucherschutz und BGB’ (2001) Juristenzeitung 479.

  109. 109.

    Weatherill, ‘The evolution of European consumer law’, 423 f.

  110. 110.

    Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-5659, at para 82; V Trstenjak and E Beysen, ‘The growing overlap of fundamental freedoms and fundamental rights in the case-law of the CJEU’ (2013) 53 European Law Review 293.

  111. 111.

    K Purnhagen, ‘United We Stand, Divided We Fall? Collective Redress in the EU from the Perspective of Insurance Law’ (2013) 21 European Review of Private Law 493.

  112. 112.

    This section is a revised version of a subchapter I already published in Purnhagen, The Politics of Systematization, 6–15, 21–23.

  113. 113.

    See for the exciting contrast between Art 30 EEC (now Art 28 TFEU) and Art 36 EEC (now Art 36 TFEU) L Gormley, Prohibiting Restrictions on Trade within the EEC. The Theory and Application of Articles 30–36 of the EEC Treaty (Amsterdam, Elsevier, 1985); P Oliver, Free Movement of Goods in the EEC under Articles 30 to 36 of the Rome Treaty, 1st (old) ed (London, European Law Centre, 1982).

  114. 114.

    See to this end Joerges et al., Die Sicherheit von Konsumgütern, 273.

  115. 115.

    See Joerges et al., Die Sicherheit von Konsumgütern, 294 with further reference.

  116. 116.

    See JA Usher, ‘Disclosure Rules (Information) as a Primary Tool in the Doctrine on Measures Having an Equivalent Effect’ in Grundmann, Kerber and Weatherill (eds), Party Autonomy, 152–153.

  117. 117.

    See to this end Joerges et al., Die Sicherheit von Konsumgütern, 309 ff.

  118. 118.

    Case 123/76 Commission v. Italian Republic [1977] ECR 1449.

  119. 119.

    See to this end also the Communication from the Commission, ‘Follow-up to the Sutherland Report—Legislative Consolidation to Enhance the Transparency of Community Law in the Area of the Internal Market’, COM(93) 361 final, 3; for a list of these product groups see C Hodges, European Regulation of Consumer Product Safety (Oxford, University Press, 2005) 22–25; for further details also N Reich and H-W Micklitz, Europäisches Verbraucherrecht, 4th ed (Baden-Baden, Nomos, 2003) paras 25.27–25.34.

  120. 120.

    The ‘new approach’—system as described above essentially focused on pre-market compliance with essential requirements, see to this end also Hodges, European Regulation of Consumer Product Safety, 61.

  121. 121.

    See Joerges et al., Die Sicherheit von Konsumgütern, 294 with further reference.

  122. 122.

    Joerges et al., Die Sicherheit von Konsumgütern, 294 ff.

  123. 123.

    Dir 85/374/EEC concerning liability for defective products, [1985] OJ L 210/29 last amended by Dir 1999/34/EC, [1999] OJ L 141/20.

  124. 124.

    See to this end inter alia A Morris, B Yandle and A Dorchak, Regulation by Litigation (New Haven, London, Yale University Press) 2009; K Viscusi (ed), Regulation through Litigation (Washington DC, Brookings Institution Press, 2002); W Wagner, ‘When All Else Fails: Regulating Risky Products Through Tort Litigation’ (2007) 95 Georgetown Law Journal 693.

  125. 125.

    See for details and the background discussion on the Directive Joerges et al., Die Sicherheit von Konsumgütern, 298 ff.

  126. 126.

    Dir 1999/34/EC.

  127. 127.

    Dir 92/59/EEC on general product safety, [1992] OJ L 228/24, no longer in force.

  128. 128.

    See for on overview N Reich, Understanding EU Law, 2nd ed (Antwerp, Intersentia, 2005) 226.

  129. 129.

    Commission Communication on the Development of Administrative Co-operation in the Implementation and Enforcement of Community Legislation in the Internal Market, COM(94) 29 final; adopted by Council Resolution on the Development of Administrative Co-operation in the Implementation and Enforcement of Community Legislation in the Internal Market, [1994] OJ C179/1.

  130. 130.

    See for a comprehensive overview Hodges, European Regulation of Consumer Product Safety, 181 ff.

  131. 131.

    Council Resolution on Co-ordination with Regard to Information Exchange Between Administrations, [1994] OJ C 181/1.

  132. 132.

    Provisional working document ‘New Approach Directives: Official Market Control’, Doc Certif 92/2, 4/3/1992.

  133. 133.

    Council Decision 92/481/EEC on the Adoption of an Action Plan for the Implementation of Community Legislation Required to Achieve the Internal Market, [1992] OJ L 286/65, amended by Commission Decision 94/818/EC, [1994] OJ L 337/89.

  134. 134.

    See the coordination activities by the Product Safety Enforcement Forum of Europe (PROSAFE).

  135. 135.

    Dir 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees, [1999] OJ L 171/12.

  136. 136.

    Dir 2001/95/EC on general product safety, [2002] OJ L 11/4.

  137. 137.

    Recital 1 of Dir 2001/95/EC.

  138. 138.

    Tricker, CE Conformity Marking, 4.

  139. 139.

    See to this end the website of the Commission on the ‘new legislative framework’, available at http://ec.europa.eu/enterprise/policies/single-market-goods/regulatory-policies-common-rules-for-products/new-legislative-framework.

  140. 140.

    The respective acts are Reg (EC) No 764/2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State, [2008] OJ L 218/21; Reg (EC) No 765/2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products, [2008] OJ L 218/30, and Decision No 768/2008/EC on a common framework for the marketing of products, [2008] OJ L 218/82. See for further information regarding the modernization of the ‘new approach’ the website of the European Commission on the ‘new legislative framework’, available at http://ec.europa.eu/enterprise/policies/single-market-goods/regulatory-policies-common-rules-for-products/new-legislative-framework/.

  141. 141.

    P Craig and G de Búrca, EU Law, 594 ff.

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Copyright information

© Springer International Publishing Switzerland 2014

Authors and Affiliations

  1. 1.Law and Governance GroupUniversity of WageningenWageningenThe Netherlands
  2. 2.Erasmus University of Rotterdam Law SchoolRotterdamThe Netherlands

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