The remaining link question

249/81 Commission –v- Ireland (Buy Irish Campaign) [1982] ECR 4005

The Irish government sought to promote sales of Irish goods, the object being to achieve a switch of 3% in consumer spending from imports to domestic products. It adopted a number of measures including: an information service indicating to consumers which products were made in Ireland and where they could be obtained (the Shoplink Service); exhibition facilities for Irish goods; the encouragement of the use of the “buy Irish” symbol for goods made in Ireland; and the organisation of a publicity campaign by the Irish Goods Council in favour of Irish products, designed to encourage consumers to buy Irish products. The first two of these activities were subsequently abandoned by the Irish Government, but the latter two strategies continued to be employed. The Commission brought Article 226 proceedings alleging the campaign was an MEQR. Ireland argued that it never adopted “measures” for the purpose of Article 28 and that any financial aid given to the Irish goods council should be judged in light of Articles 87 and 88 not article 28.

The ECT: the Irish government maintains that the prohibition against measures having an effect equivalent to quantitative restrictions in Article 28 is concerned only with the “measures” that is, to say binding provisions emanating from a public authority. However, no such provision has been adopted by the Irish government, which has confined itself to giving moral support and financial aid to the activities pursued by the Irish industries.

The Irish government goes on to emphasise that the campaign has had no restrictive effect on imports since the proportion of Irish goods to all goods sold on the Irish market feel from 49.2% in 1997 to 43.3% in 1980.

While it may be true that the two elements of the programme which have continued in effect, namely the advertising campaign and the use of the “Guaranteed Irish” symbol, have not had any significant success in winning over the Irish market to domestic products, t is not possible to overlook the fact that, regardless of their efficacy, those two activities form part of a government programme which is designed to achieve the substation of domestic products for imported products and is liable to affect the volume of trade between member states.

In the circumstances the two activities in question amount to the establishment of a national practise, introduced by the Irish government and prosecuted with its assistance, the potential effect of which on imports from other Member States is comparable to that resulting from government measures of a binding nature.

In this case, such a restrictive practise represents the implementation of a programme defined by the government which affects the national economy as a whole and which is intended to check the flow of trade between MS by encouraging the purchase of domestic products, by means of advertising using a campaign on a national scale and the organisation of special procedures applicable solely to domestic products, and where those activities are attributed as a whole to the government and are pursed in an organised fashion throughout national territory.

Ireland has therefore failed to fulfil its obligations under the Treaty by organising a campaign to promote the sale and purchase of Irish goods within its territory.

How affected EU: The ECJ’s reasoning provides an excellent example of its general strategy under Article 28. It looks to substance, not form. This is manifested in the way in which it rebuts the Irish argument that only formally binding measures are caught by the Article and in its rejection of the argument, that as the campaign appeared to have failed, therefore the EC law should be unconcerned with it.

The Court decided that, as the campaign was a clear attempt to reduce the flow of imports, it infringed Article 34 TFEU. Member States can permit organisations to encourage the purchase of specific types of fruit and vegetables, for example by mentioning their particular properties, even if the varieties are typical of national products, so long as consumers are not being advised to buy domestic goods solely by virtue of their national origin.

45/87R Commission –v- Ireland (Dundalk Water Supply) [1987] ECR 783

The contract specification for tender for a public works contract for the Dundalk water supply augmentation scheme included a clause stipulating that pressure pipes must be certified as complying with Irish Standard 118 of 1975 as drafted by the Irish institution for industrial research and standards. An Irish company, in response to an invitation to tender, submitted a tender providing for the use of pipes manufactured by a Spanish firm. These pipes had not been approved and certified by the IIRS, but they complied with internationally recognised standards and were suitable for the Dundalk scheme.

The absence of IIRS approval was given as the ground for the local authority proceeding no further with the Irish/Spanish bid. The Commission acted on a complaint and the matter came before the Court of Justice.

It was held that Ireland was in breach of Article 28 by restricting the contract only to tenderers proposing to use Irish materials, thereby excluding suitable products lawfully made in other MS complying with different recognised standards. Any pipes might be rejected on quality grounds but the use of Irish standards alone was in breach of community law by impending the importation of pipes into Ireland.

/83 Commission –v- UK (Re Origin Marking of Retail Goods) [1985] ECR 1202

 

A UK regulation required certain textile and electrical goods to be marked with their country of origin when offered for retail sale. All such goods, not merely imports, were subject to this requirement. Rejecting justification arguments based on consumer protection grounds.

The court spoke of covert discrimination which enabled British consumers to assert any prejudice they might have against foreign goods. Manufacturers remained free to indicate their own national origin if they wished, but it was not necessary to compel them to do so.

Make it indistinctly applicable, then it opens up the defence of consumer protection. This did not work however. It was encouraging people to purchase goods due to national origin. How to get around it would be if the producer does it, it’s okay. When the state get involved, it can become messy.