From ‘Dassonville’ to ‘Cassis’: The Revolution That Did Not Take Place

Abstract

Where did de Dijon come from; and what is its historic relationship to Dassonville? The orthodox Dassonville-Cassis story insists that the European Court of Justice drastically abandoned the international law categories through Dassonville by giving Article 34 TFEU a radically wide scope, while Cassis subsequently limited the consequences of this market-liberalizing revolution through the introduction of implied exemptions so as to pacify the Member States. This common reading of the Dassonville-Cassis story is however fundamentally flawed. The structure of the EU internal market indeed remained loyal to the GATT philosophy until Cassis de Dijon. It is only through this – truly – revolutionary judgment that the scope of Article 34 becomes gradually dissociated from the “ordinary” international law logic as represented in the 1947 GATT. To better substantiate this argument, this chapter places the jurisprudence on Article 34 between Dassonville and Cassis under the legal microscope. It hopes to show, hopefully once and for all, that the traditional Dassonville-Cassis story constructs a fundamental misreading of the evolution of the EU internal market – a misreading that sadly continues to hold sway over the EU academic community.