‘Ceci n’est pas .. Cassis de Dijon’: Some Reflections on its Triple Regulatory Impact. Research Papers in Law 4/2020.

Govaere, Inge (2020) ‘Ceci n’est pas .. Cassis de Dijon’: Some Reflections on its Triple Regulatory Impact. Research Papers in Law 4/2020. UNSPECIFIED.

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Abstract

The Cassis de Dijon judgement of 19792 and the famous oil on canvas “Ceci n’est pas une pipe” (often translated in English as ‘The Treachery of Images’ or ‘This is not a pipe’) by the Belgian surrealist painter René Magritte half a century earlier,3 have at least two characteristics in common. First of all, both learn that appearances may be treacherously deceptive. At face value Cassis de Dijon, by introducing the principle of mutual recognition, offered an easy and ready judge-made solution in response to EU regulatory inertia by reinstating the importance of national regulation at least of the export state. But as René Magritte warned by prominently inserting the words “Ceci n’est pas une pipe” on his painting of a tobacco pipe, what you see is not necessarily what you get.4 A deeper scrutiny of Cassis de Dijon and its consequences reveals a fundamental and direct impact on ensuing regulatory practices, even if perhaps not necessarily so originally intended. This finding lies at the core of the below reflections on the regulatory impact of Cassis de Dijon on both the EU and Member States level. Secondly, the painting by René Magritte not only continues to puzzle many of its viewers. It has also triggered a debate between himself and the French philosopher and social theorist Michel Foucault,5 which in itself has become a source of academic scrutiny and discussion until today.6 In the same vein, Cassis de Dijon continues to spark discussion, puzzlement and controversy forty years after the judgment was rendered, not merely in academia but also within the Court itself. Over time this has led to an express albeit only partial reversal of Cassis de Dijon in the Keck & Mithouard judgment of 1993,7 which in turn begged for further the clarification only rendered in the Tripeds case of 2009.8 The creator is thus also here an active participant rather than a mere bystander in steering the discussions about the meaning and scope of the emerging picture. Without seeking to be exhaustive on the matter, this contribution offers some reflections on what is conceived to be a triple yet intertwined regulatory impact of Cassis De Dijon. First attention is briefly given to its immediate impact on regulatory and democratic processes of European integration, as well as its decisive influence on shaping the new EU regulatory approach to harmonization. This is followed by some reflections on whether and to what extent this old judgment has an impact on the new delimitation of competences between the EU and the Member States, in particular in a new post-Lisbon setting which sought to clarify the division of competence. Lastly but importantly, consideration is given to the extent to which Cassis de Dijon has interfered with the regulatory capacity of the Member States in the absence of EU harmonization. In particular three tests seem to have emerged in the aftermath case law of Cassis de Dijon, each with potentially great impact on the Member States discretion to legislate: the ‘straightjacket test’, the ‘rubber-stamp exercise’, and the ‘balancing trick’. All too often these distinct yet stringently interrelated regulatory implications of Cassis de Dijon have been assessed in isolation, thereby potentially missing out on the complexity of the bigger picture.

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