57. Horsemeat Scandal and the Weaknesses of the Single Market: Does the European Court of Justice (ECJ) Have the Philosophers’ Stone in its Pocket?

(on the photo Zoltán Massay-Kosubek in Luxembourg as a lawyer-linguist at the European Court of Justice in 2007 © Zoltán Massay-Kosubek)

Why is the Single Market a disaster for consumer protection?

The EU common market became a threat and a real danger for consumers. With harmonised legislation and without border control the 4 basic freedoms brought not only economic prosperity but also permanent threat to all EU citizens. With the free movement of capital, humans, services and goods, the common market bears extremely dangerous threats.

Organised crime has reached a never seen level which evoked – among others – the creation of the new CRIME Committee in the European Parliament. Years to years, epidemics such as H1N1 and flu sweep over the EU, and according to virus experts the break out of the next epidemic is only a question of time. Speculative transactions are threatening the financial stability of the euro and the financial markets of EU states being in trouble such as Greece, Spain or Italy. And finally, due to the lack of border control mislabelled dangerous products such as ‘beef’ containing 100% horsemeat circulate freely within the EU.

Thus, we can say that the EU has been creating an enormous risk factor to its citizens every day by deepening further and further the economic integration.

What is the solution for the weaknesses of the single market? Shall we abandon the integration and go back to national market protection measures?

The right answer is obviously negative. Although there is a contradiction within the EU integration since it created both economic prosperity and weakened security, we do not have to and should not abandon the EU integration since it is vital for the survive of Europe in the globalised XXI century.

The single market is created by EU law and the EU as such is based on international law: legally binding Treaties have created the whole EU framework and those treaties are limiting the Member States possibilities.

Let’s fight fire with fire: we have to analyse the legal conditions and how to protect our consumers by EU law.

The Treaty on the Functioning of the European Union (TFEU) is mainly responsible for all positive and negative impacts of the Single Market. However, the TFEU – as the vast majority of EU law – is full with contradictions. On the one hand, it creates a common economic market free of any kind of restrictions and protective measures (see article 34/35 TFEU) and provides appropriate legal protection justified on grounds of public morality, public policy, public security or public health (see article 36 TFEU).

Article 34/35

Quantitative restrictions on imports/exports and all measures having equivalent effect shall be prohibited between Member States.

Article 36

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.
Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

We can see that there might be a potential conflict between article 34/35 TFEU and article 36 TFEU. Which text is stronger? I am afraid that there is no clear legal answer to this. As in all legal disputes, there is only one EU Institution which can decide on final resort on it and which can shape and influence the future direction of the European integration by its case law and this Institution is the European Court of Justice (ECJ).

Why is the ECJ better situated than others?

With its legal power, the ECJ has a very strong influence on the future of the Integration. The ECJ is an EU institution full with highly qualified and experienced legal masterminds; it has a certain level of serenity and maturity and its decisions are based on pure and distilled EU law which makes the ECJ able to follow long term goals in spite of other political EU institutions which are doomed to concentrate on short term political survival.

How can EU judges decide upon the European integration?

The judges are – fortunately – independent of the daily compromises of Brussels. They are invoked only if somebody brings a case towards the Court. Nevertheless, we can see it every day that all important cases soon or later end up in Luxembourg. Political and industrial stakeholders are not afraid to defend their interest with legal arguments. Consequently, the ECJ often has to decide upon political debates masked behind legal clothes in the court-room.

What does the ECJ prefer: economic interests or consumer protection?

It is difficult to say. Although the ECJ follows a tendency to protect the EU consumers against purely economic interests (see most recently the Case C‑544/10 Deutsches Weintor or C-456/10 ANETT), its decisions vary largely in different individual cases and there is no settled case law according to which article 36 TFEU would have always a predominance to article 34 TFEU.

In that regard, the Court has already recognised on several occasions that measures restricting the advertising of alcoholic beverages in order to combat alcohol abuse reflect public health concerns and that the protection of public health constitutes, as follows also from Article 9 TFEU, an objective of general interest justifying, where appropriate, a restriction of a fundamental freedom (see, to that effect, Case 152/78 Commission v France [1980] ECR 2299, paragraph 17; Joined Cases C‑1/90 and C‑176/90 Aragonesa de Publicidad Exterior and Publivía [1991] ECR I‑4151, paragraph 15; Case C‑262/02 Commission v France [2004] ECR I‑6569, paragraph 30; and Case C‑429/02 Bacardi France [2004] ECR I‑6613, paragraph 37).

Conlusion

The ECJ is bound by treaties. It cannot resolve the contradictions of the primary law of the EU by pure interpretation. Thus, the primary law, the EU Treaties must be changed in facour of consumer protection so that similar ‘horsemeat cases’ could never happen again. So, the responsibility lies with the respected Member States and other EU Institutions: the ECJ will not do their job.

I remain at your disposal.

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Zoltán MASSAY-KOSUBEK

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EU Hemicycle blog ► Blog of Zoltán Massay-Kosubek (@EU_ZMK) rss

The Blog was managed by Zoltán Massay-Kosubek from 2012 to 2014. All 77 published posts – reflecting his own personal opinions only – are publicly available. Zoltán is a Hungarian and European lawyer and Public Health advocate. more.



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