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de Witte, Bruno --- "Non-market values in internak market kegislation" [2006] ELECD 410; in Shuibhne, Nic Niamh (ed), "Regulating the Internal Market" (Edward Elgar Publishing, 2006)

Book Title: Regulating the Internal Market

Editor(s): Shuibhne, Nic Niamh

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420338

Section: Chapter 3

Section Title: Non-market values in internak market kegislation

Author(s): de Witte, Bruno

Extract:

3. Non-market values in internal market
legislation
Bruno de Witte1

INTRODUCTION
The overall title of this volume, Regulating the Internal Market, is problem-
atic in view of the famous statement by the European Court of Justice (ECJ)
in the Tobacco Advertising case that Article 100a (now Article 95) EC does not
vest in the Community legislature `a general power to regulate the internal
market'.2 Rather, measures based on Article 95 EC are permissible only if they
actually and genuinely contribute to eliminating obstacles to trade and to
removing distortions of competition.3 These two aims correspond to the two
most often cited justifications for uniformity of legal rules and principles in
the economic analysis of law literature: transboundary externalities and fair
competition.4 The judgment of the Court was welcomed by most commenta-
tors as a long needed restraint on the accretion of powers to the Community,
and also as a well-timed contribution to the constitutional debate on the delim-
itation of European Union (EU) competences (a debate which was officially
launched by the Nice Declaration adopted by the European Council two



1 Many thanks to Evangelia Psychogiopoulou, PhD researcher at the European
University Institute, for establishing a data set of internal market legislation post-1992
incorporating non-market concerns.
2 Case-376/98 Germany v Parliament and Council [2000] EUECJ C-376/98; [2000] ECR I-8419, para.
83.
3 Ibid., para. 95. It is clear from the rest of the judgment that the word `and',
used by the Court in ...