“Framing” Dassonville: Text and Context in European Law

There are few “mythical” judgments that every serious student of European integration has read or ought to have read. Journal articles will analyse them, academic textbooks will sanctify them; and, sometimes, broader theoretical superstructures will arise from them. The 1974 Dassonville judgment of the European Court of Justice is one of these judgments. It is, quantitatively, the second most-cited case in the history of European Union law; and, qualitatively, it is – for a great number of scholars – the most important judgment ever decided on the internal market. The meaning of the judgment is thereby often condensed into a famous “formula” that has come to define which national laws violate European law. This “Dassonville formula” prohibits “[a]ll trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-[Union] trade” (Dassonville, para.5).

Yet what was this “most famous pronouncement ever” (Weiler) supposed to mean? The conventional reading within European law scholarship has come to believe that the Court offered a hyper-neoliberal interpretation of the EU Treaties – an interpretation that radically dissociated itself modern international economic law. According to this view, Dassonville represents the substantive equivalent of Van Gend en Loos (1963), which had – a decade earlier – formally cut the umbilical cord with the legal order of international law. The best-known popularization of this “orthodox” view has come from the pen of Joseph Weiler. For the star philosopher of European law, the Dassonville Court was indeed inspired by “a certain Jacobean conception of the common market-place” – whatever that means – that has “as its implicit ideal type a transnational market-place which is identical to a national market-place” (ibid., 215).

The view that Dassonville introduced a “national” market model according to which all trade restrictions – be they distinctly or indistinctly applicable to imports – fall within the scope of Article 34 TFEU can also be found in the standard textbooks. In Catherine Barnard’s well-known textbook on the internal market, we thus read that Dassonville “provide[d] individual traders with a vehicle to challenge any national rule which – even potentially and indirectly – stands in their way” (ibid., 76); and for Miguel Poiares Maduro, the meaning of the Dassonville judgment is equally wide, because its “test did not require a national measure to be protectionist or to discriminate against foreign products” (ibid. 490). Hardly ever was there so much agreement among European law scholars; and it is therefore hardly surprising that political scientists, working on the internal market, have come to devotedly embrace the standard legal interpretation.

But is that really the meaning of Dassonville? Ought the “text” of the famous formula be taken at face value; or, must the judgment be understood in its historical “context”; and if so, what can the historical context tell us about the original meaning of the judgment? Was the radical neo-liberal thought of prohibiting all state laws that somehow affected external or internal trade judicially conceivable at the time of Dassonville; or is this historical foreshortening at its worst? My answers to these questions have already been published in earlier works that argued that the traditional interpretation is utterly dissociated from the historical and jurisprudential context of the case; and that the original meaning of the Dassonville formula can only be understood against the background of the Court’s early case law on especially third-county goods. Yet if that is the case, how did Dassonville come to mean what it means today; and what are the jurisprudential and non-jurisprudential channels for the radical transformation in the meaning of this famous case? This question is the subject of a monograph that has been in the pipeline for over a decade and which I simply do not seem to be able to finish…