Drinking away our sorrows? Regulatory conundrums after Scottish Whisky

The free movement of goods was my first academic love: I found, and continue to find, the problem of boundaries between the operation of Article 34 TFEU and the regulatory autonomy of the Member States a fascinating, and possibly insolvable, conundrum. And I share this passion with Laurence: indeed, my first serious encounter with Laurence’s scholarship was in reading his 1989 Yearbook of European Law article on the boundaries of the free movement of goods: that article made an important contribution to one of the liveliest debates on the limits of the free movement provisions, that arising out of the Sunday Trading case law. In those cases the Court went too far and threatened legitimate domestic policy choices, also putting itself and the national courts in the impossible position of adjudicating on, what at the end of the day, were political preferences. Whilst most of the authors at the time pointed to the Dassonville formula as originating the problem, Laurence highlighted how the issue rested not with the Dassonville formula per se, but rather with its (wrong) application by the Court. Post-Keck, and true to his previous argument, he became one of the critics of the turn of the case law and of the distinction between rules regulating certain selling arrangements and product requirements. But Keck has not put the debate to rest, and the Court-led confusion over the scope of the provisions on the free movement of goods continued: this was particularly the case in relation to advertising restrictions and internet sales. Whereas it was clear that those rules might have significant effects on intra-EU trade, the Court struggled to decide whether the test for triggering Article 34 TFEU should also include a market access test, which could be done without overruling Keck by shifting the emphasis from paragraph 16 to paragraph 17 of that ruling; or whether it should impose a (non-rebuttable?) presumption of indirect discrimination in relation to those rules that have a significant impact on market interpenetration. Such confusion only grew louder with the decisions in Commission v Italy and Mickelsson and Roos: those cases related to rules determining when and how products could be used. Here, it should be noticed that there was no need to carve out a new ‘exception’ to the case law: rules on use would be caught, and were already caught, by Article 34 TFEU when they affected actually or potentially, directly or indirectly intra-Community trade. The ‘certain selling arrangements/product requirements’ dichotomy never exhausted the type of rules that were caught by Article 34 TFEU. Yet, instead of using the standard Dassonville formula, in Commission v Italy and Mickelsson and Roos the Court added a new category of measures which fall within Article 34 TFEU, those that hinder market access. In doing so perhaps the Court intended to create a system of presumptions for the benefit of national courts; or possibly Commission v Italy is simply the result of a Court divided as to the way forward. One thing is certain, those rulings make the teaching of this area rather more difficult than it was before. Reacting to those cases, Gormley, with his usual intellectual sharpness, restated his original point: if it ain’t broke, don’t fix it. Dassonville and Cassis are tools which, if used well, provide us with all the answers we need, if not in delineating the boundaries of the free movement of goods, at least in determining which national rules should survive and which should go. This said, in this contribution I would like to focus on something slightly different, which is to say the impact of Article 34 TFEU on law making processes. In this respect, I believe that the Scottish Whisky case raises important questions as to whether Article 34 TFEU (and the internal market provisions in general) might be acting as a straight jacket to policy experimentation. In turn this raises important questions about the function, aims and limits of international trade law, crucial in the context of Brexit and the wider globalization debate. Furthermore, Scotch Whisky also offers grounds for reflection in relation to the potential difficulties of reconciling internal market and limited devolution.