Abstract
The touchstone of the judgement of the Court of Justice in Gourmet has to be seen as a revolution of Article 28. It provides particularly significant new insights into the criteria of this Article. In this judgement, the court of Justice has begun to use a more realistic and flexible approach instead of formalistic method. It is a revolution that replaces the selling arrangement with market access. Furthermore, the principle of proportionality in Gourmet opens a new door for the public interests that can not be ignored by the Court of Justice. In this paper, we focus on the common market and the proportionality principle that are the most important lessons we can learn from Gourmet. In order to understand these two aspects clearly and fully, we will firstly discuss the essentials of Gourmet: in other words, the detailed facts of the case. These include the judgement of the Court of Justice and the opinion of the Advocate Generals. In the process, we will see clearly how the Court of Justice develops the selling arrangement into the market access approach and how the Court of Justice use and analysis the proportionality principle in this case. These will provide a basic understanding of the Gourmet case. Finally, the discussions of the proportionality principle will help to deepen our concept of the common market. In this part, it is necessary to understand the concept and the importance of the proportionality principle. Consequently, we will investigate some of its legal and historical roots. In the following section, we will show how the principle is to be used. We will list the two common standards of the proportionality principle: suitability and necessary. The most important discussion will concern the different roles of the Court of Justice and national courts. This will entail the essential question of the proportionality principle: what is the proper relationship between the Court of Justice and national courts when applying the proportionality principle?
Highlights
Background andIntroduction‘The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.’ (Note 1)We all know that the original and final aim of the European Union was to establish the perfect common market without any obstacle to free trade
As we have considered above, the principle of proportionality in Article 28 and its application in EC law is a big concern for the Court of Justice and all the Member States
In the following parts, we will mainly concern ourselves with the questions: What is the definition of the proportionality principle? Why it is important for the Court of Justice in practice? How does the Court of Justice use the proportionality principle? Importantly, what are the different roles of the Court of Justice and the national courts in applying the proportionality principle?
Summary
‘The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.’ (Note 1). ‘In order for public health concerns to be capable of justifying an obstacle to trade such as that inherent in the prohibition on advertising at issue in the main proceedings, the measure concerned must be proportionate to the objective to be achieved and must not constitute either a means of arbitrary discrimination or a disguised restriction on trade between Member States.’ (Note 3). It must keep a suitable balance between two competing interests: the common market and public interests. The Court of Justice understands that it must protect the common market on the grounds of providing substantial protection for public interests
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