Harmonisation of Technical Standards: Reculer Pour Mieux Sauter?
This article will examine the harmonisation of technical standards in the light of the free movement of goods rules of the EC Treaty and the Community's attempts to create a single European market by the end of 1992. It does so from the perspective of the manufacturer and distributor of goods who is faced with a confusing and conflicting array of legal and semi-legal norms. The rules which will determine such a manufacturer's behaviour come from a variety of sources; they include domestic legislation, treaty rules as interpreted by the European Court of Justice, decisions taken jointly by fellow manufacturers under the auspices of British and European standards institutes and cognate legal rules relating to product liability. The manufacturer will find that the world of the free movement of goods is one in which there is conflict between the economic liberalism of the European Court of Justice which is expressed in abstract legally formal decisions and the interventionism of the European Commission. These two institutions, whilst perhaps sharing the ultimate desire to create a common market, approach the free movement of goods rules from entirely different perspectives. For the manufacturer who wishes to sell goods in the single market the rules seem fairly clear. Article 30 EEC prohibits, amongst other things, quantitative restrictions on imports and all measures having an equivalent effect. In the context of this paper, the key prohibition is that on measures having equivalent effect to quantitative restrictions. As Steiner says '[The prohibition] has been interpreted very generously by both the Commission and the Court, to include not merely overtly protective measures or measures applicable to imports or exports ("distinctly applicable" measures) but measures applicable to imports (or exports) and domestic goods alike ("indistinctly applicable" measures), often introduced (seemingly) for the most worthy purpose." The Court of Justice, in its famous Cassis de Dijon judgment, introduced a test to identify what national measures were permissible under Article 30.2 In this case, the Court held that certain national measures will not breach Article 30 if they are necessary in order to satisfy 'mandatory requirements' relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. In the case of