Market Access and Proportionality: Lessons from Gourmet

  •  Xiaobing Li    
  •  Lijun Jiang    


The touchstone of the judgement of the Court of Justice in Gourmet has to be seen as a revolution of Article 28. It provides particularly significant new insights into the criteria of this Article. In this judgement, the court of Justice has begun to use a more realistic and flexible approach instead of formalistic method. It is a revolution that replaces the selling arrangement with market access. Furthermore, the principle of proportionality in Gourmet opens a new door for the public interests that can not be ignored by the Court of Justice.
In this paper, we focus on the common market and the proportionality principle that are the most important lessons we can learn from Gourmet. In order to understand these two aspects clearly and fully, we will firstly discuss the essentials of Gourmet: in other words, the detailed facts of the case. These include the judgement of the Court of Justice and the opinion of the Advocate Generals. In the process, we will see clearly how the Court of Justice develops the selling arrangement into the market access approach and how the Court of Justice use and analysis the proportionality principle in this case. These will provide a basic understanding of the Gourmet case.
Finally, the discussions of the proportionality principle will help to deepen our concept of the common market. In this part, it is necessary to understand the concept and the importance of the proportionality principle. Consequently, we will investigate some of its legal and historical roots. In the following section, we will show how the principle is to be used. We will list the two common standards of the proportionality principle: suitability and necessary. The most important discussion will concern the different roles of the Court of Justice and national courts. This will entail the essential question of the proportionality principle: what is the proper relationship between the Court of Justice and national courts when applying the proportionality principle?

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