‘Re-reading’ Dassonville : meaning and understanding in the history of European law

Abstract:

There are few “mythical” judgments that every student of European integration has read or ought to have read. Dassonville is one of these judgments. The Court here makes one of its “most famous pronouncement[s] ever”; and yet very little historical research on where the Dassonville formula came from and what it was intended to mean in 1974 has yet been undertaken. The conventional wisdom holds that the Court offered a hyper-liberal definition of the European internal market, which radically dissociated itself from the conceptual shackles accepted in classic international trade law. According to this view, Dassonville represents the substantive law equivalent of Van Gend en Loos. This traditional view, it will be argued here, is simply not born out by the historical facts. A contextual interpretation indeed shows a very different meaning of Dassonville; and a closer author-centric analysis reveals a very different understanding of the Dassonville formula in its historical context. What does this “re-reading” mean for our understanding of European law and its history? Not only is a re-reading of the “classics” an obligation for every generation of young European lawyers; more importantly still: in order to understand the history of European law, we must try to reconstruct the – doctrinal – context to each classic case.