Common Market Law Review CONTENTS Vol. 49 No. 1 February 2012

COMMON MARKET LAW REVIEW
CONTENTS Vol. 49 No. 1 February 2012
Editorial comments, Some thoughts concerning the Draft Treaty on a 1–14

Reinforced Economic Union
Articles
S. de La Rosa, The Directive on cross-border healthcare or the
art of codifying complex case law 15–46
N. Hachez and J. Wouters, A responsible lender? The European
Investment Bank’s environmental, social and human rights
accountability 47–95
C. Gerner-Beuerle, Shareholders between the market and the State.
The VW law and other interventions in the market economy 97–143
P. Wenneras, Sanctions against Member States under Article 260
TFEU: Alive, but not kicking? 145–175
C. Krenn, A missing piece in the horizontal effect “jigsaw”:
Horizontal direct effect and the free movement of goods 177–215
A. Witt, From Airtours to Ryanair: Is the more economic approach
to EU merger law really about more economics? 217–246
C. Bovis, Public procurement in the EU: Jurisprudence and
conceptual directions 247–289
J. Hojnik, Free movement of goods in a labyrinth: Can Buy Irish
survive the crises? 291–326
Case law
A. Court of Justice
Case C-69/10, Brahim Samba Diouf v. Ministre du Travail, de

l’Emploi et de l’Immigration, with annotation by P. Van
Cleynenbreugel 327–347
Case C-434/09, Shirley McCarthy v. Secretary of State for the
Home Department; Case C-256/11, Dereci and others v.
Bundesministerium für Inneres, with annotation by N. Nic
Shuibhne 349–379
Case C-398/09, Lady & Kid A/S and others v. Skatteministeriet,
with annotation by M. Strand 381–399
Case C-81/09, Idrima Tipou AE v. Ipourgos Tipou kai Meson
Mazikis Enimerosis, with annotation by T. Papadopoulos 401–416
Book reviews 417–446

Survey of Literature 447–468
Publications received 469–479
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Common Market Law Review 49: 291–326, 2012.
FREE MOVEMENT OF GOODS IN A LABYRINTH: CAN BUY IRISH

SURVIVE THE CRISES?
JANJA HOJNIK*
1. Introduction
In the last few decades we have been witnessing two parallel tendencies. On
the one hand increased movement of goods, people, services and capital in an
increasingly borderless world has led to globalization of the world market,
while on the other hand the ever increasing search for one’s identity has, in
certain parts of the world, resulted in destructive dimensions.1 In these
circumstances consumers are becoming progressively concerned with their
cultural and ethnic identities. As found by Vida and Fairhurst “(t)hese ethnic
sentiments are reflected in consumer behaviour through an inclination towards
domestic products – ethnocentric consumer orientation – or towards imported
products – polycentric consumer orientation”.2
Some authors suggest that ethnicity and nationalism are some of the strongest
motives influencing the behaviour of the modern market.3 Various
stakeholders at the global and EU level (trade unions, associations of
entrepreneurs and State authorities) tend to enhance consumer ethnocentrism
and limit polycentric views, in order to protect their respective workplaces,
profits and national budgets. For this purpose they promote various “buy
domestic” and “buy local” campaigns, national quality labels on products etc.,
and thus try to protect national economies to the detriment of foreign goods
and services. These measures present considerable obstacles to free trade,
since they establish negative stereotypes among consumers which judgments
* PhD, Assistant Professor of EU Law, Faculty of Law, University of Maribor, Slovenia. I

would like to thank Rajko Knez for sharing his Euro-enthusiasm with me, but also for discretely
challenging me to constantly examine it. Furthermore, many thanks to the anonymous
reviewers for their helpful comments. Any errors and material omissions that remain are, of
course, solely my responsibility.
1. See Čutura, “The impacts of ethnocentrism on consumers’ evaluation processes and
willingness to buy domestic vs. imported goods in the case of Bosnia and Herzegovina”, (2006)
South East European Journal of Economics and Business, 63.
2. Vida and Fairhurst, “Factors underlying the phenomenon of consumer ethnocentricity:
Evidence from four central European countries”, 9 International Review of Retail and
Consumer Research (1999), 322.
3. Keillor and Hult, “A five country study of national identity, implications for international
marketing research and practice”, 16 International Marketing Review (1999), 65–82.
292 Hojnik CML Rev. 2012
or other legal acts cannot easily eradicate. Campaigns that encourage the
purchase of national products as opposed to imported products have a long
history around the globe. This is especially true of the food sector, where the
quality of goods cannot always be easily recognized and where one must also
take into consideration that food is closely related to the land, nation’s
survival, prosperity and public security. In recent years, as we are facing three
coinciding crises (economic, food and environmental), these campaigns are
particularly wide-spread. However, within the EU such intentional boosting of
consumer ethnocentrism contravenes the central idea of the single market. In
the famous Buy Irish case, the Court of Justice found that “Ireland has… failed
to fulfil its obligations under the Treaty by organizing a campaign to promote
the sale and purchase of Irish goods within its territory, thereby prohibiting
State spreading of negative stereotypes against imported goods”.4
This finding presents one of the cornerstones of the EU single market,
however, lack of solidarity and the rise of populism in many EU countries,
which has, according to Weiler, brought the EU to its “lowest point in
history”,5 jeopardize this achievement of EU market law. This article explores
how three simultaneous crises of the present time challenge the judgment in
Buy Irish. Various national campaigns of EU Member States which attempt to
increase consumer ethnocentrism are discussed in light of the established case
law of the Court, thereby highlighting new circumstances, in which the
principle of free movement of goods, particularly of food, is currently situated.
In this respect, in a recent Green Paper on promotion measures and
information provision for agricultural products6 the Commission adopted an
apparently new approach towards local and regional food markets, defining
them as “an essential meeting place for producers and consumers”. The
Commission emphasized the importance of short distribution channels for the
national tradition, foods security and climate change prevention and
expressed its financial support for the establishment of commercial centres,
local shops or multi-purpose convenience stores, covered and uncovered
markets, etc., which would benefit the marketing of local products. This “new
approach”, which will be looked at in more detail below, could have
considerable consequences for the legitimacy of national initiatives to
promote domestic purchase, thereby compromising a thirty year old
judgment – Buy Irish – as well as free movement of goods in general.
4. Case 249/81, Commission v. Ireland, [1982] ECR 4005, para 30.

5. “EU has reached its ‘lowest point in history’”, EurActiv, 10 May 2011,
<www.euractiv.com/en/future-eu/eu-reached-lowest-point-history-news-504666> (last visited
31 July 2011).
6. Green Paper on promotion measures and information provision for agricultural products:
A reinforced value-added European strategy for promoting the tastes of Europe, COM(2011)
436 final.
Buy Irish 293
2. Three crises challenging global free trade
The wide-ranging development which could have a considerable effect on the

established EU law guaranteeing free movement of goods and consequently
on the legitimacy of national consumer ethnocentric campaigns, is related to
three crises of the present time: economic, food and climate change crisis.
2.1. Economic crisis
The still on-going economic crisis, also called the Great Recession,7
challenges the single EU market, absent from ethnocentric State campaigns.
Generated by the outbreak of the financial crisis in 2007, it has affected the
entire world economy, with considerable detriment to EU Member States, and
presents the worst crisis Europe has faced since the 1930s. Economies
worldwide have slowed down, as credit tightened and international trade
declined. Governments and central banks responded with unprecedented
fiscal stimuli. The crisis in international trade and investment was followed by
massive unemployment and a halt in job creation. The strain on State resources
has required austere measures and cuts in public spending in a number of
Member States, at a time when economic recovery is still fragile and
government spending would assist recovery.8 Instead of fostering economic
recovery, we are dealing with a severe public debt crisis, endangering the
common European currency and threatening new economic slowdown. In
these circumstances protectionist aspirations in most EU Member States
strengthened, which is evident from increasing nationalism and negative
attitudes towards imported goods and foreign workers, as well as from a
disregard to the benefits of free trade by national politics in many Member
States.9
7. Wessel, “Did ‘great recession’ live up to the name?”, Wall Street Journal, 8 Apr. 2010,
<online.wsj.com/article/SB10001424052702303591204575169693166352882.html> (last
visited 23 Aug. 2011).
8. European Commission, “Regulating financial services for sustainable growth, a progress
report”, Feb. 2011, p. 4, <ec.europa.eu/internal_market/finances/docs/110209_progress_
report_financial_issues_en.pdf> (last visited 23 Aug. 2011).
9. Resistance to liberalization is demonstrated by the controversy over the Services
Directive, opposition to some high profile cross border mergers and increasing economic
patriotism (see 3.3. infra). All this is part of a generally growing scepticism about enlargement,
the euro and free movement of people within an enlarged EU. More on this Liddle,
“Protectionism, populism and the future of Europe” (1 March 2006), <www.policy-
network.net/articles/352/Protectionism-populism-and-the-future-of-Europe> (last visited 2
Nov. 2011).
2.2. Food crisis
Closely related to the financial and economic crisis is the crisis on commodity
markets – including energy, metals and minerals, agriculture and food. In
recent years these markets have experienced increased instability and
unprecedented price movements. Prices in all major commodity markets
reached a peak in 2008.10 Such developments are the result of a series of
changes in global supply and demand patterns as well as of short term shocks.
In addition, commodity markets are increasingly connected with financial
markets and a crisis on the latter inevitably leads to a crisis on commodity
markets.11 With regard to the food market, which is the focus of this article, the
aforementioned price escalations caused a rapid increase in consumer food
prices and although hunger is not a wide-spread problem in the EU, high food
prices reduced the purchasing power of EU households, which is most
prominent in low income households.
All these factors influence national food policies that are intensively
oriented towards the increase of national self-sufficiency, thereby isolating
countries from turbulence on international markets food prices and in extreme
circumstances even protecting their citizens from the risk of hunger. Negative
consequences of this process are inevitably felt on cross-border food trade.
Furthermore, various diseases that occur regularly (e.g. BSE, swine influenza
– H1N1, avian influenza – HPAI and most recently the e.coli strain outbreak)
speak in favour of more self-sufficient national economies (especially with
regard to food), while simultaneously increasing consumers’ distrust in
foreign foods and thereby causing damage to trade flows.
2.3. Climate change crisis
The third crisis influencing free trade is the modern climate change crisis,
dominated by human influences that exceed the bounds of natural vari-
ability. The main source of global climate change is human-induced
changes in the atmosphere that result from emissions associated with energy
use, urbanization and land use changes.12 Climate has varied naturally in the
past, but today’s circumstances are unique because of human influence on
10. Commission Communication, “Tackling the challenges in commodity markets and on

raw materials”, COM(2011)25 final.
11. Ibid., see also Commission Communication “Food prices in Europe”, COM(2008)821
and its accompanying staff working document “Task force on the role of speculation in
agricultural commodities price movements – Is there a speculative bubble in commodity
markets?”, SEC(2008)2971.
12. Karl and Trenberth, “Modern global climate change”, 302 Science, no. 5651, p. 1719.
Buy Irish 295
atmospheric composition.13 Although there is still considerable uncertainty

about the rates of change that can be expected, it is clear that these changes
will be increasingly manifested and the likely outcome of this process is
more frequent heat waves, droughts, extreme precipitation events and
related impacts (such as wild fires, heat stress, vegetation changes, and sea
level rise). Distinguished climate analysts Karl and Trenbert claim that
“(w)e are venturing into the unknown with climate, and its associated
impacts could be quite disruptive”,14 while the Nobel prize winner Gore
professes that: “(e)ach passing day brings yet more evidence that we are
now facing a planetary emergency, a climate crisis that demands immediate
action to sharply reduce carbon dioxide emissions worldwide in order to
turn down the earth’s thermostat and avert catastrophe”.15
One of the main sources of carbon dioxide emissions is transport – of
people, but to an even larger extent of large quantities of goods across
continents. Efforts to reduce harmful emissions from transport could
potentially justify a reduction in long-distance transport of goods when local
substitutes are available, thereby considerably affecting international trade in
goods.
2.4. National responses
National politics respond to the three crises with various hard law and soft law
mechanisms with which they protect their national economies, commodities
and the ecosystem. In this way increased consumer ethnocentrism is a
frontline instrument that can help State authorities fight all three crises:
increased consumption of domestic goods preserves domestic jobs and fills
the State budget, gives incentive to domestic farmers to produce domestic
food, and limits long-distance transport of goods from other parts of the world.
These are the reasons why States widely use campaigns to enhance consumer
ethnocentrism. Notwithstanding this, however, not all such campaigns are
legitimate, especially not in the EU. Nevertheless, in the light of the
above-mentioned Green paper, this paper will recall the justifications claimed
to save such initiatives, and hazard some comments as to whether the apparent
change in policy by the Commission affects these.
13. Ibid., p. 1721.

14. Ibid., p. 1719.
15. Gore, “Finding solutions to the climate crisis”, Transcript of the lecture at the New York
University Law School, 18 Sept. 2006, <www.astrosurf.com/luxorion/climate-crisis-al-
gore.htm> (last visited 23 Aug 2011).
3. Consumer ethnocentrism and free trade
3.1. Definitions of consumer ethnocentrism
The term ethnocentrism was introduced by the American sociologist Sumner

who defined it as “the technical name for (the) view of things in which one’s
own group is the centre of everything, and all others are scaled and rated with
reference to it”.16 In the research of consumer opinions towards foreign
products a concept of consumer ethnocentrism was established representing
“beliefs accepted from the consumer about the appropriateness, that is,
morality of the purchase of foreign products”.17 Ethnocentric consumers
believe in the superiority of their own countries’ products and object to
imported goods because they are harmful to the national economy and cause
unemployment, and therefore consider the purchase of imported goods to be
an unpatriotic act.18 For these reasons consumer ethnocentrism has a negative
effect on foreign product judgment and willingness to buy foreign products.19
As Kaynak and Kara put it, “the consequences of consumer ethnocentricity
include overestimation of the quality and value of domestic products and
underestimation of the virtues of imports, a moral obligation to buy domestic
products, and intense preference for domestic products”.20
3.2. Sources of consumer ethnocentrism
Consumer ethnocentrism can be the product of culture and parental

upbringing, but it can also be the result of promotional campaigns of various
stakeholders. Among the latter, one of the main groups interested in enhancing
consumer ethnocentrism are workers, who want to secure their workplaces
and escape turbulent competition on the employment market. To this end
16. Sumner, Folkways (Ginn, 1906), p. 13.
17. Shimp, “Consumer ethnocentrism: The concept and a preliminary empirical test” in
Kinnear (Ed.), Advances in Consumer Research (Provo, UT, Association for Consumer
Research, 1984), p. 285.
18. Shimp and Sharma, “Consumer ethnocentrism: Construction and validation of the
CETSCALE”, 24 Journal of Marketing Research (1987), 280. Shimp and Sharma developed a
scale based on 17 items called CETSCALE (Consumer Ethnocentric Tendencies Scale) the
purpose of which is to estimate the degree of ethnocentric tendencies among consumers.
19. By contrast, polycentric consumers regard foreign products as objects which are
evaluated on their own merits (e.g. products’ price), regardless of their origin (or are even
evaluated more favourably due to the fact they are not manufactured in their home State) –
Shimp and Sharma, loc. cit. previous note. One such example is Greek enthusiasm for imported
consumer goods over locally manufactured products, where a new term was introduced – i.e.
“xenomania” or a craze for anything foreign.
20. Kaynak and Kara, “Consumer perceptions of foreign products: An analysis of
product-country images and ethnocentrism”, 36 European Journal of Marketing, (2002), 934.
Buy Irish 297
workers’ unions organize campaigns in order to convince consumers to give

preference to national production.21
Additionally, production companies are the second group interested in
enhancing consumer ethnocentrism, thereby eliminating foreign competition
on the domestic market (while simultaneously advocating free competition on
their export markets) and by doing so increasing their profit – without having
to increase the efficiency of their respective productions. Although reliance on
the country of origin is of paramount importance for companies that are not
very competitive, no company is so successful that it would object to
additional consumer support on the domestic market for reasons of
ethnocentrism. In this respect, companies can either a) put individual labels on
their products (e.g. made in Motherland), b) they can join forces with other
national producers and create common origin labels and advertise them
among consumers, and/or c) they can appeal to State authorities to help them
protect the domestic market.
States are thus the third stakeholder interested in a high rate of consumer
ethnocentrism. For centuries they have been intervening in cross-border
exchange by trying to restrict imports and boost export to gain trade surplus.22
They intervene on the market in order to optimize the income of their
respective national budgets. States have various tools for guaranteeing
domestic demand: they can either do it directly – by behaving in an
ethnocentric manner when playing the role of the purchaser on the market
(protectionism in public procurement);23 or indirectly – by influencing private
entities to purchase in an ethnocentric manner. Such influence can either be
formal or informal. A legal requirement to purchase certain domestic goods24
or apply country of origin labels on products25 depicts formal (coercive)
21. One such example is the North American union label movement, rooted in craft
unionism, which began in 1869, that clearly marked products made or services offered by
unionized workers with a union label; fellow working class consumers were in turn encouraged
to purchase products or services with the Union label.
22. Economic policy that claims government control of foreign trade to be of paramount
importance for ensuring the prosperity of a State (it above all demanded a positive balance of
trade) is called mercantilism. It dominated Western Europe from the 16th to the late 18th century
– see Appleyard and Field, International Economics (Irwin Inc., 1992), pp. 19–26.
23. E.g. the Buy American Act (BAA - 41 U.S.C. paras. 10(a)–10(d)) passed in 1933 by
Congress and signed by President Roosevelt, required the United States government to prefer
U.S.-made products in its purchases. Public procurement is of course highly regulated in the EU,
see in this Review Bovis, “Public procurement in the EU: Jurisprudence and conceptual
directions, 000.
24. E.g. oil – see Case 72/83, Campus Oil Limited and others v. Minister for Industry and
Energy and others, [1984] ECR 2727 and Case C-137/91, Commission v. Greece, [1992] ECR
I-4023.
25. The Court explained the market effect of origin marking in Case 207/83, Commission v.
United Kingdom, [1985] ECR 1202, para 17.
influence. On the other hand, informal (non-coercive) influence on consumers

includes recommendations (rather than obligations) of domestic purchase
using various ethnocentric market campaigns. This article focuses on the
latter.
3.3. Ethnocentric market campaigns of EU Member States
“Buy domestic” or “buy local” movements are nothing new. Going back to at
least the Middle Ages, economies have drawn back from trade in harsh
economic times. The most famous campaign on EU territory was run thirty
years ago by the Irish Government, which established the Irish Goods Council
to encourage all classes of purchasers within Ireland to buy Irish goods rather
than imported products. Among other things, a wide-ranging advertising
campaign was conducted in which purchasers were appealed to give
preference to goods bearing the “Guaranteed Irish” label.26 Almost thirty
years later, as the economic crisis reached Ireland, the campaign was
regenerated.27
Soon after the Irish campaign, the Greek socialist government in 1985
launched a campaign “Buy Greek” to cut down the flow of luxury imports,
thereby reducing unemployment and a tremendous trade deficit. A press and
television campaign launched by the Greek Goods Promotional Board was
followed up by special discount offers in stores selling Greek-made consumer
goods.28 Consequently, it comes as no surprise that in the times of a severe
economic and public debt crisis, Greeks are once again promoting the
purchase of domestic products. In this respect, a group of Greeks, including
26. Oliver (Ed.), Oliver on Free movement of Goods in the European Union (Hart
Publishing, 2010), p. 168.
27. Nowadays, a limited company “Guaranteed Irish” is conducting a fresh campaign with
the aim “to increase awareness of, and demand for, Irish products and services”. The explicit
goal of the campaign is to maximise employment and prosperity in Ireland. This time the
campaign is not run by the Irish State or a State-funded company but by “like-minded business
people as a non-profit organisation to educate, network, innovate and support our members and
consumers” – the campaign’s website: <www.guaranteedirish.ie/why_who_we_are.html> (last
visited 30 Aug. 2011). Likewise, Danish furniture is promoted by a campaign “Buy Danish” –
<www.buydanish.dk> (last visited 30 Aug. 2011).
28. A TV spot for the “Buy Greek” campaign showed an unknown Greek actor praising
imported goods and then lining up for unemployment benefits. The spot quickly became a
national joke and the actor became a star in a comedy film called “I’m Lalakis and I’m
Imported”. On the other hand, a high school principal failed three students, because they came
to school wearing foreign-made shoes: “These same youngsters who think it’s fashionable to
wear foreign shoes will be unemployed tomorrow and wondering why”, said the principal to the
disciplinary board investigating his decision – “‘Buy Greek’ campaign launched to cut down
flow of luxury imports”, Los Angeles Times, 28 Jan. 1985, <articles.latimes.com/1985-01-28/
business/fi-10296_1_greek-market> (last visited 29 Aug. 2011).
Buy Irish 299
the leader of the Athens’ prefecture, has created a campaign

“καταναλώνουµε ó,τι παράγουµε” (“let’s consume what we produce”),
with the purpose of encouraging Greeks to wear Greek clothes, consume
Greek food and spend their holidays in Greece. This initiative was signed by
90 personalities from the Greek art world, business and universities, as a
remedy against the crisis.29
As early as 1969 Germany adopted a law on the creation of a central fund
for the promotion of German agricultural, forestry and foods sectors.30 In
1993 the Fund focused its attention on promoting the distribution and
exploitation of German agricultural and food products. The promotional
activities were performed through a central body (Centrale
Marketing-Gesellschaft, CMA), which adopted a number of measures,
including a special quality label (Markenqualität aus deutschen Landen), the
use of which was reserved for products manufactured in Germany. Similarly,
the Austrian Agrarmarkt Marketing GmbH (known as AMA Marketing),
established by the Austrian Ministry for Agriculture, issues quality seals
“AMA-Gütesiegel – Geprüfte Qualität Austria”, guaranteeing that food has
been produced in Austria and is of top quality.31 Italy, too, has an entity
responsible for promoting and safeguarding Italian agricultural, food and
wine products. BuonItalia SpA,32 a company established by the Italian
ministry for agriculture in 2003, promotes the value and quality of products
that carry the “Made in Italy” label of quality, thereby protecting “patrimonio
alimentare d’Italia”.33 The mission of Sopexa S.A.,34 a company established
and co-financed by the French Government way back in 1961 is very similar
to that of BuonItalia SpA. It is the largest company for advertising agricultural
and food products in the world, performing global promotion for the French
authorities as well as for companies. Sopexa does not only promote French
29. “Ντύ νοµαι… τρώω… κάνω τουριςµó… ελληνικ ά”, 18 Jan. 2011,
<www.inews.gr/141/ntynomai – troo – kano-tourismo – ellinika.htm> (last visited 30 Aug.
2011). Furthermore, a website appealing to Greeks abroad to help their motherland has been
launched: <www.helpsavegreece.com> (last visited 30 Aug. 2011).
30. Absatzfondsgesetz – AFG.
31. See <www.fleisch-teilstuecke.at/en/133/>; see also website <www.ama-marketing.
at/?id=232>; Landa, “AMA-‘Güte’siegel soll von EU verboten werden”, <www.tierschutz.
cc/dachverband/docs/aussendungen/aus191.html> (all last visited 30 Aug. 2011).
32. Buonitalia – Società per la promozione e la valorizzazione dell’agroalimentare Italiano;
the company’s name is presented with a slogan “the real taste of Italy”, appearing under its
name.
33. I.e. Italian food heritage – Lardera, “Buonitalia SPA is stepping up its efforts to protect
authentic Italian Food”, <www.altacucinasociety.com/features_detail.asp?id=37> (last visited
23 Aug. 2011).
34. Société pour l’Expansion des Ventes des Produits Agricoles et Alimentaires français.
food and wine, but also French “art de vivre”.35 The French Government also
promotes a label viande bovine française (French beef) throughout France,
guaranteeing that meat comes from animals born, raised and slaughtered in
France.36
Taking into consideration that ethnocentric market activities for the
protection of domestic production are present in the founding EU Member
States, it is hardly surprising that such activities exist in more recent Member
States. One such example is the Hungarian Centre for Agricultural
Marketing,37 established in 1996 by the Hungarian ministry for agriculture,
which employs promotional and marketing techniques to help Hungarian
agricultural products on domestic as well as on export markets. For this
purpose the Centre also promotes quality labels for high quality foods. The
leading label Kiváló Magyar Élelmiszer (KME – Quality Food from Hungary)
is carried by over 400 Hungarian products with the intention of standing out on
supermarket shelves, making them more noticeable for consumers.38
Similarly, the Ministry of Agriculture of the Czech Republic awards the
national KLASA značka (KLASA Mark) to the highest quality food and
agricultural products of Czech producers, while various other Czech products
(e.g. shoes, toys and hotel products) are awarded logos of the Czech Made
programme.39
Furthermore, in March 2011 the Slovenian Parliament adopted a special
statute on promotion of agricultural and food products.40 The Slovenian
minister for agriculture and food clarified that the Act has four aims: “a buyer,
who buys Slovenian food gives work to our farmer and worker; this way the
State budget is being filled; high food safety is being guaranteed and an
important step towards climate change prevention is being done (the transport
is the greatest polluter)”.41 The minister recently highlighted another aim – i.e.
that in combating world hunger each country must grow as much food as
possible. Slovenian neighbouring country Croatia has also launched a
35. See <www.sopexa.com/food_wine_lifestyle_connections.php?lang=FR> (last visited

23 Aug. 2011).
36. See <www.civ-viande.org/3-27-reglementation-tracabilite-des-viandes.html> (last
37. Agrármarketing Centrum – AMC.
38. See <www.amc.hu/vedjegyek/kme/kivalo-magyar-elelmiszer-kme> (last visited 23
Aug. 2011).
39. See <www.czech.cz/en/100384-klasa-mark-and-czech-made-%E2%80%93-the-high-
est-award-for-products-and-services> (last visited 29 Oct. 2011).
40. Promotion of Agricultural and Food Product Act, Official Gazette, no. 26/2011, in
force since 23 Apr. 2011.
41. “Svet za promocijo kmetijskih in živilskih proizvodov na svoji ustanovni seji”, Ministry
for Agriculture, News, 16 May 2011, <www.mkgp.gov.si/nc/si/splosno/cns/novica/article//
6589/> (last visited 22 Aug. 2011).
Buy Irish 301
booming campaign “Buy Croatian”,42 despite the fact that this EU

membership candidate is already bound by the EU rules on free movement of
goods.43 Finally, various promotional campaigns of domestic goods take place
also in Lithuania. One such campaign is called “rinkis preke lietuviška”
(“fix in Lithuania”), which tries to protect the volume of sales of Lithuanian
goods, while preserving jobs and companies’ existence.44 Furthermore, at the
outbreak of the economic crisis, a Member of the Lithuanian Parliament
requested that the Government take all possible measures to protect
Lithuanian producers and consumers and to encourage the country’s
economy, foremost by requiring labels of origin, distinguishing between
products of Lithuanian and foreign origin, thereby diminishing Lithuanian
consumers’ “delight of other countries, farmers and companies”.45
This article by no means attempts to present an exhaustive list of consumer
ethnocentric campaigns and other initiatives that take place on the EU market;
however, the cases mentioned prove that economic protectionism is still
considerably widespread at a time when the 20th anniversary of the EU
internal market is fast approaching.
4. Consumer ethnocentrism and EU single market rules
As the Court has emphasized on many occasions, the EU, “by establishing a
common market and progressively approximating the economic policies of
the Member States, seeks to unite national markets in a single market having
the characteristics of a domestic market”.46 Consumer ethnocentrism does not
as such oppose this idea; neither does patriotic upbringing devoted to respect
of national history, culture and tradition. On the other hand, certain campaigns
boosting ethnocentrism may contravene the principles of EU internal market,
foremost Article 34 TFEU (ex 28 EC) which prohibits quantitative restrictions
on imports and all measures having equivalent effects between Member
States. State boosting of consumer ethnocentrism above all opposes and
harms the EU internal market and undermines decade-long efforts of various
42. Campaign’s website: <www.kupujmo-hrvatsko.hr/> (last visited 22 Aug. 2011).

43. See Art. 17 of the Stabilization and Association Agreement between the European
Communities and their Member States, on the one part, and Republic of Croatia, on the other
part, O.J. 2005, L 26/3.
44. For a review of “Buy Lithuanian” initiatives, see: <pirkprekelietuviska.lt> (last visited
29 Aug. 2011).
45. “Premjero prašoma apsaugoti lietuviška preke”, 14 May 2009, <verslas.delfi.lt/
business/premjero-prasoma-apsaugoti-lietuviska-preke.d?id=22131564> (last visited 29 Aug.
2011).
46. See e.g. Commission v. United Kingdom, cited supra note 25, para 17.
EU institutions to integrate the EU market and remove age-old barriers

between States.
4.1. The sponsor’s role
One important and distinguishing feature of abovementioned campaigns is

their sponsor. When applying Article 34 TFEU, it is not insignificant whether
it is the Slovenian Parliament who adopts an Act to promote Slovenian goods,
or an Austrian limited company (GmbH) established by the ministry for
agriculture promoting quality labels, or an association of Irish businessmen
and workers promoting “Guaranteed Irish”, or a British TV reality show star
wearing a “Buy British” T-shirt.
In legal terms we are speaking of vertical and horizontal direct effects of
Article 34 TFEU. Polemics around this issue arose precisely around “buy
domestic” and quality label cases. As a matter of principle, Article 34 TFEU
only prohibits State measures that limit free movement of goods between
Member States.47 Hence, only State campaigns designed to enhance consumer
ethnocentrism are caught by Article 34 TFEU – understandably, these also
include campaigns by central (e.g. ministries) and regional authorities.48
When the Buy Irish case came before the Court it was therefore not surprising
that Advocate General Capotorti found that:
“it would be going too far if, through the inclusion in the concept
‘measures’ of initiatives taken at a level not involving the exercise of
public authority, an indirect link with the State were recognized in addition
to the potential and indirect nature of the obstacle to imports resulting
from advertising in favour of domestic products”.49
By contrast, the Court took a different stance and as a result ethnocentric

motions of private entities are also caught by Article 34 TFEU, provided they
can be attributed to the State – be it because they were established by the State,
largely financed by the government or through obligatory contribution of
companies in certain sectors, and/or have members that are appointed or
controlled by public authorities.50 For this reason the campaign of the Irish
Goods Council, a private company promoting Irish goods, was found to be in
breach of Article 34 TFEU, as it was financed by the Irish Government. A
47. Case 8/74, Procureur du Roi v. Dassonville, [1974] ECR 837.

48. Case 45/87, Commission v. Ireland (Dundalk Water Supply), [1988] ECR 4929; Case
C-1/90, Aragonesa de Publicidad v. Departamento de Sanidad, [1991] ECR I-4151.
49. Commission v. Ireland, cited supra note 4, para 6, p. 4030.
50. See e.g. Case C-227/06, Commission v. Belgium, [2008] ECR I-46. Similar to this was
also a WTO panel’s finding in the case Japan – Film (WT/DS44/R, 1998, para 10.56).
Buy Irish 303
fortiori, the actions of the German Fund for quality marking were also bound
by Article 34 TFEU.51 In more recent case law the Court went as far as to
declare that States are responsible for public statements of their officials
which reflect the State’s official point of view, regardless of whether they have
a binding effect or not.52 Ethnocentric market campaigns are full of such
public statements.
By contrast, entirely privately owned entities escape the grasp of Article 34
TFEU.53 In this respect, the Court in Sapod Audic54 held that a contractual
obligation to label packages with a Green Dot logo does not constitute a
barrier to free trade as guaranteed by Article 34 TFEU, as this obligation was
not imposed by the State, but agreed between private contractual parties. It
should nevertheless be highlighted that in Commission v. France (Spanish
strawberries case),55 the Court held the State responsible for the activities of
private individuals (farmers), because it had “manifestly and persistently
abstained from adopting appropriate and adequate measures” to assure free
movement of goods.56 However, lesser barriers to free movement caused by
individuals will not be considered as a responsibility of the State.57
Furthermore, Member States enjoy considerable discretion in this field, which
makes the principle of State liability for barriers to free movement of goods by
private entities more of a political commitment than a truly enforceable
obligation. Although the Court held Member States responsible “to take all
necessary and appropriate measures to ensure that that fundamental freedom
is respected on their territory”,58 it nevertheless recognized that Member
States “unquestionably enjoy a margin of discretion in determining what
measures are most appropriate to eliminate barriers to the importation of
products in a given situation” and that it is “not for the Community institutions
to act in place of the Member States and to prescribe for them the measures
which they must adopt and effectively apply in order to safeguard the free
movement of goods on their territories”.59 As the issue of severity of private
51. Case C-325/00, Commission v. Germany, [2002] ECR I-9977, para 18. See case note by
Jarvis, 40 CML Rev. (2003), 715.
52. Case C-470/03, A.G.M.-COS.MET Srl v. Suomen valtio in Tarmo Lehtinen, [2007] ECR
I-2749.
53. For a comment, see Baquero Cruz, “Free movement and private autonomy”, 24 EL Rev.
(1999), 608.
54. Case C-159/00, Sapod Audic v. Eco-Emballages SA, [2002] ECR I-5031, para 74.
55. Case C-265/95, Commission v. France, [1997] ECR I-6959.
56. Ibid., para 65.
57. Case C-112/00, Eugen Schmidberger v. Austria, [2003] ECR I-5659.
58. Commission v. France, cited supra note 55 para 32.
59. Ibid., paras. 33–34. For this reason the Commission also found in relation to the Council
Regulation codifying the Commission v. France ruling (Council Regulation (EC) No. 2679/98
on the functioning of the internal market in relation to the free movement of goods among the
actions and the appropriateness of national response to such measures can

only be judged on a case-by-case basis, one can only wonder whether the
Court or a national court applying EU law would hold Ireland’s Government
responsible for the recent Guaranteed Irish campaign, which is conducted by
private entities, or for that matter any other Member State for tolerating private
“buy domestic” or “buy local” campaigns. Promotional campaigns are also
sensitive from the freedom of speech point of view (so-called commercial
speech),60 which restricts the application of the Commission v. France
principle.61 In this regard ethnocentric campaigns could be compared to
Viking Line/Laval62 type of cases, where the EU Court deliberated whether
trade unions, by exercising collective action – the right to which is recognized
as a fundamental human right – breached free movement of services.
Nevertheless, as the Court does not recognize horizontal direct effect of
Article 34 TFEU,63 promotional campaigns sponsored by private entities, such
as the Guaranteed Irish initiative, have never actually appeared before the
Court.
This, however, does not mean that such private promotional campaigns
should in the future stay outside the scope of Article 34 TFEU. Advocate
General Maduro observed in Viking Line,64 that “collective action that…
impedes the hiring of seafarers from certain Member States in order to protect
the jobs of seafarers in other Member States would strike at the heart of the
principle of nondiscrimination on which the common market is founded”. For
the same reason private companies may not promote employment of men over
women or Caucasians over other races, nor may trade unions support such
activities.65 In the field of free movement of goods, which was a long time
front-runner of the EU internal market, we have, on the other hand, obviously
still not reached a point where discrimination based on nationality (or origin of
Member States, O.J. 1998, L 337, p. 8–9), that “(a)lthough it is an instrument born of political
will, the Member States have not given it any teeth by including effective means of intervention
in the text” – see the Report from the Commission to the Council and the European Parliament
on the application of Regulation (EC) No. 2679/98, COM(2001)160 final, p. 12.
60. This subject matter is discussed in detail in relation to the U.S. Supreme Court case law.
The idea of commercial speech was first introduced by the Supreme Court in Valentine v.
Chrestensen, 316 U.S. 52 (1942), and further clarified in Ohralik v. Ohio State Bar Association,
436 U.S. 447 (1978).
61. See Art. 2 of the Council Regulation (EC) No. 2679/98.
62. Case C-438/05, International Transport Workers’ Federation, Finnish Seamen’s Union
v. Viking Line ABP, OU Viking Line Eesti, [2007] ECR I-10779; Case C-341/05, Laval un
Partneri Ltd v. Svenska Byggnadsarbetareförbundet and others, [2007] ECR I-11767.
63. See Krenn, “A missing piece in the horizontal effect ‘jigsaw’: Horizontal direct effect
and the free movement of goods” in this Review, 000.
64. Viking Line, cited supra note 62, Opinion, para 62.
65. See Art. 21 of the Charter of Fundamental Rights of the European Union, O.J. 2010, C
83/389.
Buy Irish 305
goods) would generally be prohibited. Only promotions of domestic goods by

the State are prohibited, while this is not true of private campaigns – the latter
are prohibited merely if they can in some way be ascribed to the State.
4.2. Ethnocentric campaigns as a barrier to free movement of goods
In 1982, when the Commission brought an action against Ireland before the
Court,66 Advocate General Capotorti was of the opinion that, despite the fact
that campaigns sought to give domestic producers a competitive advantage
over foreign producers, the non-binding nature of the ethnocentric campaigns
saved them from the grasp of Article 34 TFEU.67 By contrast, the Court held
that the implementation of a programme defined by the government of a
Member State, affecting the national economy as a whole by intending to
control the flow of trade between Member States by encouraging the purchase
of domestic products, is to be regarded as a measure having an effect
equivalent to quantitative restrictions.68 The Court condemned the campaign,
because it reflected the Irish Government’s desire to achieve “the substitution
of domestic products for imported products and was liable to affect the volume
of trade between Member States”.69 Even though the sale of domestic
products dropped by six per cent during the campaign, this did not convince
the Court to change its decision about the campaign breaching Article 34
TFEU.70
The decision in Buy Irish should be distinguished from the decision in
Apple and Pear Development Council,71 from which one may conclude that
State-sponsored promotion of national goods in general is illegitimate, if
merely the national origin of goods is highlighted, while on the other hand the
promotion of specific goods having distinctive qualities, besides those of
national origin, is permissible.72 The line delimiting the two types of
66. Commission v. Ireland, cited supra note 4.

67. Ibid., Opinion of the A.G., p. 4031.
68. Ibid., judgment, para 29.
69. Ibid., para 25.
70. The decision is in line with Art. 2(3)(k) of Commission Directive No. 70/50/EEC, based
on provisions of Art. 33(7) on the abolition of measures which have an effect equivalent to
quantitative restrictions on imports and are not covered by other provisions adopted in
pursuance of the EEC Treaty (O.J. (English Spec. Ed.) 1970(i), p. 17). Understandably, national
requirements of domestic purchase are a fortiori prohibited by EU law, unless justified by
legitimate reasons – Campus Oil and Commission v. Greece, both cited supra note 24.
71. Case 222/82, Apple and Pear Development Council v. K.J. Lewis Ltd, [1983] ECR
I-4083.
72. Barnard, The substantive law of the EU: The four freedoms (OUP, 2010), p. 83. See also
Gormley, EU Law on Free Movement of Goods and Customs Union (OUP, 2009), p. 420 and
Oliver, op. cit. supra note 26, p. 168.
promotion is obviously a very fine one. In order to clarify questions to which

even the two abovementioned Court’s cases did not provide answers, the
Commission issued Guidelines for Member States’ involvement in promotion
of agricultural and fisheries products in 1986.73 In this document the
Commission emphasized:
“Identification of the producing country by word or symbol may be made
providing that a reasonable balance between references, on the one hand to
the qualities and varieties of the product and, on the other hand, its national
origin is kept. The references to national origin should be subsidiary to the
main message put over to consumers by the campaign and not constitute
the principal reason why consumers are being advised to buy the
product”.74
The Commission added that references to quality control should only be

made when products are subject to a genuine and objective system of quality
control.75 These principles were toughened by the Court in 2002 with regard to
the German quality label for domestic agricultural produce.76 The Court found
that the contested scheme had, at least potentially, restrictive effects on free
movement of goods between Member States.
“Such a scheme, set up in order to promote the distribution of agricultural
and food products made in Germany and for which the advertising
message underlines the German origin of the relevant products, may
encourage consumers to buy the products with the CMA label to the
exclusion of imported products”, ruled the Court, adding that “(t)he fact
73. Commission communication concerning State involvement in the promotion of

agricultural and fisheries products, O.J. 1986, C 272/3.
74. Database of EU law, <eur-law.eu/EN/Commission-communication-concerning-State-
involvement-promotion-agricultural-fisheries,130669,d>, para 2.3.1. (last visited 30 Aug.
2011).
75. One can agree with advocates of ethnocentric market campaigns that origin of goods
does matter, but only for certain types of goods. In such cases the ECJ also recognized the
importance of origin-marking – see e.g. Case 113/80, Commission v. Ireland (Irish Souvenirs),
[1981] ECR 1625. A specific case is EU food sector legislation, where the need to assure
traceability of food justifies requirements of origin marking – see Regulation (EC) No.
178/2002 laying down the general principles and requirements of food law, establishing the
European Food Safety Authority and laying down procedures in matters of food safety, O.J.
2002, L 31/1. Further specifics are geographical indications and designations of origin – see
Council Regulation (EC) No. 510/2006 on the protection of geographical indications and
designations of origin for agricultural products and foodstuffs, O.J. 2006, L 93/12. In general,
however, the Court is opposed to State requirements of origin-marking – see Commission v.
United Kingdom, cited supra note 25, para 17.
76. Commission v. Germany, cited supra note 51.
Buy Irish 307
that the use of that quality label is optional does not mean that it ceases to
be an unjustified obstacle to trade”.77
4.3. Justifying State campaigns that enhance consumer ethnocentrism
4.3.1. General observations

Notwithstanding established law, according to which national measures that
prima facie hinder free movement may nevertheless be justified (if they serve
important interests recognized by the EU and are proportionate), in its case
law regarding campaigns that boost consumer ethnocentrism, the Court did
not seriously consider possible justifications. In the Buy Irish case, the Court
merely found that the Goods Council measures were caught by Article 34
TFEU. In the German Quality Label case this approach had not changed
significantly. The Court did not show much hesitation when dismissing the
German Government’s argument that the quality label constituted an
exception within the meaning of Article 36 TFEU (ex 30 EC) for the
protection of industrial and commercial property insofar as it constituted a
geographical indication of provenance. In that regard, the Court explained that
since the quality label defined the provenance as the extent of German
territory and applied to all agricultural and food products fulfilling certain
quality requirements alike, it could not be considered as a geographic
indication capable of justification under Article 36 TFEU.78
Promoters of the campaigns presented above (section 3.3) offer numerous
policy reasons as justification: filling the national budget, job preservation,
consumer protection, national tradition and culture, food self-sufficiency and
aversion of hunger, environmental protection etc. Considering the three
current crises, the Court might be forced to consider the States’ interests in
more detail than it has done so far. Should it fail to do so, it could establish law
that does not correspond to a “market on the ground”, thereby risking its own
legitimacy. As former judge Jann once stated: “Discussions must concentrate
on the common market that truly exists and not on the ideal market that has no
failures. The latter simply does not exist”,79 adding that “today the Court is
aware that the judges must establish a balance for a successful market. At one
hand, we must do all we can to remove barriers, at the same time, however, we
must be aware that there are national interests that must be protected, even
77. Ibid., paras. 23–24. Thereby referring to Case 13/78, Eggers, [1978] ECR 1935, para 26.
78. Commission v. Germany, cited supra note 51, para 27. For comment see Jarvis, op. cit.
supra note 51, 727.
79. Interview with judge Jann, Trybunal Sprawiedliwosci i integracija, Radca Prawny, 12
Feb. 2002, p. 100.
when this protection means keeping certain barriers in the functioning of the
ideal internal market”.80
The following sections discuss the possibilities of the above stated national
interests to be accepted as a justification for ethnocentric market campaigns
by the EU Court in light of its settled case law.
4.3.2. Public finances’ hardships and job preservation

In general the Court does not accept policy reasons of economic nature, such
as public finance hardships, high unemployment rates or economic
difficulties in certain sectors,81 as legitimate reasons for the justification of
national barriers to free movement. Nevertheless, the Court has taken into
consideration some quasi-economic aims, for example preventing “the risk of
seriously undermining the financial balance of the social security system”.82
Notwithstanding this, it is difficult to comprehend how filling the national
budget or job preservation could ever be accepted as legitimate reasons for
hindering free movement of goods – ironically, the EU Member States would
rather give fellow Member States with public finances troubles a low interest
loan or even a subsidy worth billions of euro’s than legitimize discriminatory
market campaigns.
Since job preservation has somewhat more of a moral connotation than
budget hardships, it is one of the main pillars of all “buy domestic” campaigns,
regardless of whether they are initiated by trade unions or other stakeholders.
As most of consumers are also workers, this is understandable. In relation to
this, Advocate General Maduro remarked in his Opinion in Viking Line, that:
“(a)lthough the Treaty establishes the common market, it does not turn a
blind eye to the workers who are adversely affected by its negative traits.
On the contrary, the European economic order is firmly anchored in a
social contract: workers throughout Europe must accept the recurring
negative consequences that are inherent to the common market”.83
80. Ibid., p. 100.

81. Case 95/81, Commission v. Italy, [1982] ECR 2187, para 27. See also Joined Cases 62
& 63/81, Seco, [1982] ECR 223, para 15 and Case C-224/97, Ciola, [1999] ECR I-2517,
para 16.
82. Case C-120/95, Nicolas Decker v. Caisse de maladie des employés privés, [1998] ECR
I-1831.
83. Case C-438/05, Viking Line Eesti, [2007] ECR I-10779, para 59.
Buy Irish 309
When justifying domestic purchase it is also considerably widespread to

refer to ethical consumerism,84 arguing that working conditions on export
markets are unsuitable, thereby causing negative externalities that enable low
prices of goods and social dumping, which should be prevented. Nevertheless,
considering the harmonization of labour standards at the EU level, it is
difficult to use this argument when referring to goods exported from other EU
Member States.
4.3.3. Consumer protection

Consumer protection has been accepted as a “mandatory requirement”
already in Cassis de Dijon,85 and the majority of national campaigns, as a
means of their justification, thus rely on the quality of goods to which
consumers are entitled. At the same time however, an impartial observer may
find that they in fact promote the country of origin. In this way, sponsors of
campaigns count on consumers’ ethnocentric sentiments to ensure the
purchase of domestic goods. It may well be that Hungarian pork is of excellent
quality, but is it possible that meat of such quality is not to be found anywhere
else in the EU? If so, then why can it also not get the Hungarian label of quality
in order for Hungarian consumers to recognize that although it is of Latvian or
British origin, that particular meat is of the same quality as domestic meat?
Promoters probably rely on the fact that consumers will not give such
questions too much thought. This suggests that the motives of campaigns run
deeper than purely providing quality information, making them an
inappropriate means to protect consumers. The latter want a diverse range of
goods for low prices. Of course, they also want quality goods, but quality
cannot be guaranteed simply by a product originating from a specific State,
much the same as inferiority cannot be ascribed to products originating from
another State. What sponsors of campaigns rely on is the fact that consumers
are at the same time workers and entrepreneurs and that ethnocentric
campaigns will aid in their development of negative stereotypes towards
foreign goods. Such intentions, however, cannot justify the campaigns. This
conclusion is supported by the Court’s decision in the German Quality Label
case, where the Court dismissed the argument that the fact that the contested
scheme pursues a quality policy puts it outside the scope of Article 34 TFEU.
Even though the Commission in the 1986 Communication advocated striking
84. Ethical (or moral) consumerism describes a situation, where a consumer intentionally
purchases products that it considers to be made ethically – <www.ethicalconsumer.org/
ShoppingEthically/Topethicaltips/WhyBuyEthically.aspx> (last visited 30 Aug. 2011).
85. Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein, [1979]
ECR 649.
a “reasonable balance” between references to quality and references to

national origin, the Court obviously showed no inclination towards searching
for such a “reasonable balance” and adopted an “effects” based analysis
instead.86
4.3.4. National tradition and culture

To some extent, the references to national tradition and culture which are
inherent in practically all national ethnocentric market campaigns are more
well-founded – they are the underlying motive in “patrimonio alimentare
d’Italia”, Irish pride to buy Irish, as well as French “art de vivre”. Moreover,
the Slovenian Government recently announced that a traditional Slovenian
breakfast will be introduced to children in kindergartens and primary schools,
consisting exclusively of Slovenian food – in this way children should learn
about the importance healthy eating, but also about the significance of
domestic food.87
One must agree that the EU is internally very diverse – with regard to
economic development and natural endowments, as well as to traditional
cultures and values of different political systems. Nevertheless, equivocal
definitions and goals of the Treaty have enabled the EU to influence
unforeseen areas. Consequently, the four freedoms have had a significant
impact on people’s way of life. These provisions of the TFEU have, together
with the Court’s case law, led to a considerable limitation of autonomy and the
removal or adjustment of numerous national traditions. Positive integration of
EU legislation had similar restrictive effects on the Member States’
sovereignty when regulating trade related and unrelated issues. This is true for
national food law, determining certain ingredients or additives; national
family law, determining the way families live; as well as trade law,
determining opening hours of shops and forbidding the sale of certain
products, such as alcoholic drinks or erotic magazines.
Although the Court initially showed some understanding for tradition,88 in
the end free trade has usually come first. Accordingly, the Court, in the case of
86. Jarvis, op. cit. supra note 51, 715.

87. “V vrtcih in osnovnih šolah bodo jedli tradicionalni slovenski zajtrk”, Times. si,
17 Aug. 2011, <www.times.si/zanimivosti/v-vrtcih-in-osnovnih-solah-bodo-jedli-tradicion-
alni-slovenski-zajtrk – 638d9d437b-e8e7c7c3b9.html> (last visited 18 Aug. 2011). The project
is conducted in collaboration with the Slovenian Ministry for Education and Ministry for
Agriculture. The initiative for the project was given by the Slovenian Beekeepers’ Association.
88. In the Irish souvenirs case the Court namely stated: “it is unnecessary for a purchaser to
know whether or not a product is of a particular origin, unless such origin implies a certain
quality, basic materials or process of manufacture or a particular place in the folklore or
tradition of the region in question” – Commission v. Ireland, cited supra note 75, para 13,
emphasis added.
Buy Irish 311
the German Biersteuergesetz,89 where Germany defended traditional beer

production procedures,90 dismissed German arguments and claimed that:
“(c)onsumers’ conceptions which vary from one Member State to the other
are also likely to evolve in the course of time within a Member State. The
establishment of the common market is, it should be added, one of the factors
that may play a major contributory role in that development”.91 National
tradition should thus not be static, but should evolve through influence of
other Member State practices. Similarly, the Court dismissed traditional
Italian pasta standards, even though the Advocate General stated that only
Italians know the exact meaning of the terms “spaghetti”, “vermicelli”,
“bucatini”, “maccheroni”, “rigatoni”, “fusilli”, “penne”, “linguine”,
“orecchiette”, “malloreddus”, etc.92 Likewise, Steyger refers to the statement
of a British MP from the 1980s: “The Europeans have gone too far. They are
now threatening the British sausage. They want to standardize it, by which
they mean they’ll force the British people to eat salami and bratwurst and
other garlic-ridden greasy foods that are TOTALLY ALIEN to the British way
of life”.93 In this regard, rules that mirror certain ways of life in individual
Member States have faced a considerable challenge under EU law.
This trend of tradition-denying is reversed by the EU Treaty, which in its
preamble proclaims that a goal of the EU is “to deepen the solidarity between
their peoples while respecting their history, their culture and their traditions”.
In line with this, the Court has in recent years shown more sensitivity to
national legal tradition and has demonstrated augmented calmness in its
activism, becoming more sensitive to the preservation of national legal
tradition.94 Notwithstanding this, the Court will not have an easy job when
trying to establish a balance between free movement of goods and national
traditions, with which States will attempt to justify protectionist campaigns. In
89. Case 178/84, Commission v. Germany, [1987] ECR 1227.

90. See Steyger, National traditions and European Community Law, Margarine and
Marriage (Dartmouth Publishing, 1997), p. 34.
91. Commission v. Germany, cited supra note 89, para 32.
92. Case 407/85, Drei Glocken and others v. USL Centro-Sud and others, [1988] ECR
I-4233. Nevertheless, the A.G. acknowledged that the purpose of the Italian legislation is also
to encourage production of hard wheat, which is in certain regions of Mezzogiorno the only
successful yield.
93. Steyger, op. cit. supra note 90, p. 1. It must be noted though that in 1992, the scheme for
traditional specialities guaranteed set up a register of names of food specialities having a
traditional character, stemming either from their traditional composition or traditional
production methods used – see Council Regulation (EC) No. 509/2006 on agricultural products
and foodstuffs as traditional specialities guaranteed, O.J. 2006, L 93/1.
94. See e.g. Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v.
Oberburgermeisterin der Bundesstadt Bonn, [2004] ECR I-9609, Case C-210/06, Cartesio
Oktató és Szolgáltató bt, [2008] ECR I-9641 and case C-208/09, Ilonka Sayn-Wittgenstein,
judgment of 22 Dec. 2010, nyr.
line with the Court’s modus operandi Member States will have to show
convincingly that national tradition is the dominant and true goal of the
campaigns and not some other (economic) goals. In this respect, we can
potentially conclude that promoting a traditional breakfast in schools might be
given a green light by the Court, while this cannot be true of more general “buy
domestic” campaigns, whose aim is predominantly protectionist.
4.3.5. National food self-sufficiency and food security

National food self-sufficiency is another justification of national campaigns
that try to enhance consumer ethnocentrism, lately often referred to by
Member States. It relates to the question of whether a country can meet its own
food demands. Food self-sufficiency is closely related to food security which
is a legitimate goal for every country in the world and has as such become a
key global challenge, highly intertwined with politics. While the term “food
security” has mainly been used in relation to the security of food supply in
developing countries, at both the national and household level, the issue has
recently climbed up the policy ladder in the developed world. It is therefore not
only countries in Asia, Africa and the Middle East which have moved towards
self-sufficiency by boosting domestic agricultural production through
subsidies and import tariffs, but also USA and EU are committed to this goal.
The rapid increase in food commodity prices and food retail prices from the
year 2006 through to 2008 has namely raised political awareness of potential
vulnerabilities and volatilities of national food supply. Consequently, in 2009
Convay stated that “(f)ood security, which was not on the agenda of anyone but
agriculture ministries only three years ago, is now very central to
governments”.95 Farming organizations have taken this opportunity to lobby
governments for additional support for food producers and the nation’s food
production capacity for both domestic and international markets. Food
self-sufficiency is therefore also a slippery slope leading to protectionism or
national autarky. In this respect, the OECD defines food security as a
“[c]oncept which discourages opening the domestic market to foreign
agricultural products on the principle that a country must be as self-sufficient
as possible for its basic dietary needs”.96
Nevertheless, the conventional definition of food security is that given by
FAO in 1996: “food security exists when all people, at all times, have access to
95. Blas, “Food self-sufficiency ‘is a nonsense’”, Financial Times, 9 Nov. 2009,
<www.ft.com/intl/cms/s/0/bad4d152-cd53-11de-8162-00144feabdc0.html#axzz1W8M1Ritl>
(last visited 23 Aug. 2011). Convay is a senior vice-president at Cargill food security initiatives,
the world’s largest trader of agricultural commodities.
96. “Food Security”, OECD Glossary of Statistical Terms, 2008, <stats.oecd.org/
glossary/detail.asp?ID=5006> (last visited 30 Aug. 2011).
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sufficient, safe and nutritious food to meet their dietary needs and food
preferences for an active and healthy life”.97 It is a basic economic policy aim
for any government, and an objective around which there is broad national and
international consensus. The main concern is the strategy by which food
security should be achieved: the paradox with food insecurity is that it is not
about global insufficiency, in terms of the quantity of food produced, but
rather about a problem of access. One way of guaranteeing food security is by
combining domestic production with import, thus diversifying sources of
supply of agricultural commodities, even though most politics favour
domestic production over import.98 The other way is self-sufficiency – it is
based on the assumption that domestic suppliers are more reliable than foreign
ones, meaning that in time of war or food crisis access to food by the
population is in no way dependent on foreign suppliers.99 If self-sufficiency
presented a legitimate justification for barriers to free movement of goods in
the EU, this would lead to the conclusion that such an assumption is in
accordance with EU law. Once again this sheds light on the question, how
plausible is it for EU Member States carrying out “buy domestic” campaigns,
to successfully justify the latter by referring to the need to increase
self-sufficiency and thus enhance food security.
It is hardly possible to refute that food security is an important part of public
security in general. As such it is recognized by Article 36 TFEU (ex 30 EC) as
a legitimate reason to hinder trade in goods, meaning that even discriminatory
or protectionist measures could be justified on its basis. This was
demonstrated in the Campus Oil case,100 where Ireland managed to justify its
requirement for importers of petroleum products to purchase a certain
proportion of their needs (35 %) from a State-owned oil refinery (INPC) at
prices fixed by the Irish Government. The measure was evidently
discriminatory and protectionist. The Irish Government nonetheless justified
it on grounds of public security, as without this requirement the only Irish oil
refinery could not survive on the market. This could in turn present a hazard
for Ireland, as it would have no oil in times of a crisis. The Court supported the
argumentation recognizing that because of the exceptional importance of
petroleum products as an energy source in the modern economy (as was shown
97. Food and Agriculture Organisation (FAO), Rome Declaration on World Food Security,
Rome 1996, <www.fao.org/docrep/003/w3613e/w3613e00.htm> (last visited 30 Aug. 2011).
98. The goal is to diversify the sources of supply, as in the management of a financial
portfolio, so that the diversification of assets decreases the risk associated with the overall
portfolio while the expected global yield remains constant.
99. “The lure of attaining food security for Europe through self sufficiency”,
<cap2020.ieep.eu/2008/10/28/the-lure-of-attaining-food-security-for-europe-through-self-
sufficiency> (last visited 30 Aug. 2011).
100. Campus Oil, cited supra note 24.
during the oil shocks), an interruption in supplies, with the resulting dangers
for the country’s existence, could seriously affect public security.101 Given
that Irish law served the purpose of public security, the fact that it also served
objectives of an economic nature was irrelevant. The Court held that “the aim
of ensuring a minimum supply of petroleum products at all times was to be
regarded as transcending purely economic considerations”.102
As sufficient national food resources raise national security in the event of
war, Member States could, mutatis mutandis, also refer to food security when
averting dependence from food import. It must be pointed out, however, that
Campus Oil is a specific case that has not been reaffirmed. This was proven by
another case103 which related to the Greek intention to hold a minimum
amount of petroleum products on its territory. The Court of Justice found that
the national rule breached Article 34 TFEU and the public security defence
was rejected on the grounds that the measure was “purely economic”,104
despite the fact that in the Campus Oil case economic interests were also close
behind the security ones.
Although they are non-binding, national promotional campaigns are also
driven by national food security goals as well as economic interests. The main
question when justifying such campaigns is therefore whether they are
predominantly trying to assure food for the national population or whether
they are primarily trying to assure business for the national food industry. As
there is a considerable difference between EU Member States with respect to
their self-sufficiency rate, the answer might depend on the actual level of food
self-sufficiency in individual States. The principle of proportionality should
therefore be applied when dealing with this issue.
Although one may agree that food security is at least as important as free
trade, food self-sufficiency policy, as a means of guaranteeing food security, is
less convincing in this regard as it has some advantages, but also many
drawbacks. Food self-sufficiency has the advantage of saving foreign
exchange for the purchase of other commodities which cannot be locally
produced and of insulating countries from the impulses of international trade
and uncontrollable fluctuations in agricultural commodity prices. It also
ensures that sufficient food is always available to feed the domestic
population. In practice, there are however many drawbacks: where food
self-sufficiency is difficult to achieve, climatic conditions such as storms,
floods and droughts may rapidly cause nations to become dependent either on
food aid or food imports. Self-sufficiency and market isolation are therefore
101. Ibid., para 34.

102. Ibid., para 35.
103. Commission v. Greece, cited supra note 24.
104. Ibid., para 30. See Barnard, op. cit. supra note 72, p. 157.
Buy Irish 315
not the most rational of solutions, especially for small States that are
economically dependent on their trading partners also in other economic
sectors. Free trade, specifically within the EU internal market, is therefore an
alternative which suggests that self-sufficiency lacks the necessity aspect of
proportionality.105 In this regard it should be pointed out that the European
Commission has drafted four pillars of food security:106
- physical availability of food for everyone: offering enough foodstuffs to
meet everyone’s needs (through national farm production, distribution and
imports);
- economic and physical access to food: this involves stable markets,
affordable prices for local populations, decent incomes and adequate
purchasing power, thus enabling households to cover their food needs;
- utilization of food and related resources: this involves appropriate use of
food in a form of nutritional balance and an adequate supply of micronutrients
(vitamins, minerals, etc.); and
- stability of food supply over time (short/medium/long term): this should
guarantee that access to food is impartial to either the emergence of sudden
shocks (economic or climatic) or cyclical events (seasonal food insecurity).
Enhancing national food self-sufficiency at the expense of free trade on the
internal market therefore requires that an individual Member State shows,
with a sufficient degree of probability, that an aspect of food security for its
population is in danger and that the EU internal market does not present a
sufficient guarantee in this respect. Considering the short-lived food price
peaks in 2008 and the Common Agricultural Policy, it is hard to imagine how
a Member State could justify its need to enhance national self-sufficiency by
imposing barriers to free movement of goods from other Member States – be
it through non-binding market campaigns or otherwise. Increasing national
self-sufficiency in any other way apart from in accordance with the internal
market rules, i.e. by increasing the level of competitiveness of the national
food sector, therefore seems futile.
105. As a whole, the EU has a high level of self-sufficiency in foodstuffs. In 2006, the EU
became for the first time since the introduction of the CAP, a net exporter of agrifood products,
with a surplus of 3 bn. See European Commission, “Agriculture in the European Union
statistical and economic information 2007″, <ec.europa.eu/agriculture/agrista/2007> (last
106. European Commission, “Food security: Understanding and meeting the challenge of
poverty” (2009), p. 7–8, <ec.europa.eu/europeaid/infopoint/publications/europeaid/
documents/163a_en.pdf> (last visited 30 Aug. 2011).
4.3.6. Environmental protection

Finally, a widespread justification for “buy domestic” campaigns is
environmental protection. Sponsors of such campaigns often stress that
domestic production must be increased and long-distance transport reduced,
as the latter constitutes a main cause of pollution. Environmental protection is
a legitimate objective that is increasingly relied on by Member States when
justifying barriers to free movement of goods. Advocates of free trade and
environmental activists are usually seen as opponents defending opposite
goals, although their interests are not necessarily irreconcilable. In the EU,
which is committed to assuring free movement of goods but at the same time
has increasingly clear environmental objectives, the task to balance free trade
with environmental aspects was assigned to the Court. The leading judgment
in this respect was Commission v. Denmark,107 where the Court accepted that
environmental protection justifies barriers to free movement of goods,
provided acts are proportionate and the respective issue is not regulated at the
EU level.108 This allowed a broader justification of environmental protection
than on the basis of Article 36 TFEU.109 Nevertheless, it has not yet been
decided whether environmental protection may serve as a justification for
campaigns that increase consumer ethnocentrism.
In the context of environmental impact of food, the term “food miles” was
developed, referring to the distance food has travelled from the time of its
production until it reaches the consumer.110 On average, food travels 4,000 km
before it arrives at the consumer and this distance is constantly increasing.111
This modern long-distance food system offers unparalleled choice, however
recently intensified concerns about global warming, compounded by food
poisoning scandals associated with contaminated meat and deadly bacteria in
vegetables, have caused many people to think about where our food comes
from – thus counting our “food miles” (or kilometres). A range of studies
compare emissions from the entire food cycle, taking into consideration its
production, consumption and transport.
107. Case 302/86, Commission v. Denmark, [1988] ECR 4607. See also Case C-389/96,
Aher-Waggon, [1998] ECR I-4473, para 20.
108. Maduro, “Reforming the market or the State? Article 30 and the European
constitution: Economic freedom and political rights”, 3 ELJ (1997), 60.
109. For an interesting case on environmental consequences of transport see Case C-28/09,
Commission v. Austria, pending.
110. Engelhaupt, “Do food miles matter?”, 42 Environmental Science & Technology
(2008), 3482.
111. Priesnitz, “Counting our food miles”, 2007, <www.life.ca/wendy/articles/foodmiles.
html> (last visited 30 Aug. 2011).
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Popularity of environmental protection and climate change debates adds

fuel to campaigns (private and public) which encourage consumption of
domestic products. Considering the large size of (certain) States, “buy
domestic” campaigns are often substituted with “buy local” or even “think
global, act local” campaigns, as they are more convincing in terms of
environmental protection than the former. “Buy local” campaigns are thus
significantly more widespread than “buy domestic” campaigns.112 Even so,
“buy local” means the same as “buy domestic” under EU internal market law.
Although geographically speaking, “local” is usually a narrower concept than
“domestic”, we can assume that it rarely means “foreign”. In that regard in
Commission v. Italy,113 a case concerned with the Italian reservation of public
works for companies having their registered office in the region where the
works were to be carried out, the Italian Government alleged that the provision
also excluded undertakings established in Italy which had their registered
offices outside the region in question, however, the Court concluded that the
fact remained that all the sub-contractors which it favoured were Italian
undertakings. The measure therefore discriminated against foreign providers
of the relevant works and Italy was found to be in breach of its obligations
under the freedom to provide services. That “buy local” does not significantly
differ from “buy domestic” can also be deduced from the following promotion
of one “buy local” campaign:
“Remember, by buying local your food will be fresher and more
nutritious, your goods made by your neighbors and you will be
contributing to a healthier economy and less fossil fuel being used to
transport items long distances. You pay for freshness and taste, not
packaging, refrigeration, and freight. You are supporting local jobs for
local people!”114
The traditional approach of the Court was that discriminatory measures (such
as “buy local” campaigns) could not rely on environmental protection
112. E.g., they occur on the U.S. internal market, where rules similar to those of the EU
internal market apply: from Michelle Obama’s White House garden to grants from the U.S.
Department of Agriculture’s “Know Your Farmer, Know Your Food” initiative, an agenda has
emerged to give local foods more prominence on the dinner plates of the American citizens. In
this respect, there are farm-to-school programs in 48 states and agricultural branding programs
in all 50 states in the U.S., such as “Jersey Fresh” or “Simply Kansas”. U.S. Representative
Chellie Pingree wanted to help farmers by recently introducing the Eat Local Foods Act (HR
5806), assisting schools in providing local foods in school lunches. For issues of application of
Art. 34 TFEU, only State campaigns promoting local goods are considered in this article.
113. Case C-360/89, Commission v. Italy, [1992] ECR I-3401.
114. See <www.buylocalthinkglobal.com> (last visited 30 Aug. 2011).
justification.115 However, as pointed out by Advocate General Trstenjak in

Commission v. Austria,116 more recent case law indicates that environmental
protection is an imperative public interest, upon which discriminatory
measures may also rely.117 Nevertheless, “buy domestic” and “buy local”
campaigns are still difficult to justify by reasons of environmental protection,
as the effects of increased local consumption on the reduction of global
warming and energy consumption are not clear-cut. Admittedly, Member
States may encourage production and marketing of environmentally friendly
products, award them quality marks or even restrict advertising of products
with high costs for the environment, however, the origin of goods and food
miles may not be the only relevant factor with regard to the environmental
appropriateness of goods. Instead, individual products must be assessed in
terms of emissions during their whole lifecycle. Indeed, national rules on
advertising of goods are included among the provisions “restricting or
prohibiting certain selling arrangements”,118 which are, according to the
Court’s decision in Keck,119 excluded from Article 34 TFEU, but nevertheless,
the Court held that such measures “must not be of such a kind as to prevent
access to the market by products from another Member State or to impede
access any more than they impede the access of domestic products”.120
Advertising restrictions of goods transported from afar would thus fall within
Article 34 TFEU and would need to be justified on environmental protection
grounds.
Many scholars state that most of the greenhouse gas emissions created by
food have their origin in the production phase, which creates 83% of the
overall emission of CO2.121 Small (local) farms require substantially more
land, water, and other inputs than larger (non-local) farms and the community
as a whole does not actually save money because consumers have to spend
more on the more expensive local products, they say. Hence they argue that the
115. For a comment, see Scott, “Mandatory or imperative requirements in the EU and the
WTO”, in Barnard and Scott (Eds.), The Law of the Single European Market, Unpacking the
Premises (Hart Publishing, 2002), p. 269.
116. Commission v. Austria, cited supra note 109, Opinion of the A.G., para 83.
117. E.g. Case C-379/98, PreussenElectra, [2001] ECR I-2099.
118. Case C-292/92, Ruth Hünermund v. Landesapothekerkammer Baden-Württenberg,
[1993] ECR I-6787.
119. Joined Cases C-267 & 268/91, Keck and Mithouard, [1993] ECR I-6097.
120. Ibid., para 17. Confirmed in Case C-405/98, Konsumentombudsmannen (KO) v.
Gourmet International Products AB (GIP), [2001] ECR I-1795, para 18. Also in Joined Cases
C-34-36/95, De Agostini and TV-Shop, [1997] ECR I-3843, para 42, the Court held that it cannot
be excluded that an outright prohibition, applying in one Member State, of a type of promotion
for a product which is lawfully sold there might have a greater impact on products from other
Member States.
121. Weber and Matthews, “Food-miles and the relative climate impacts of food choices in
the United States”, 42 Environmental Science & Technology (2008), 3511.
Buy Irish 319
“buying local” trend is just a watered down version of protectionism, and does
not benefit communities as proponents envisage.122 Moreover, even locally
grown and organic food can be kept chilled for months; refrigeration requires
energy; trying to cheat our climate by growing fruit and vegetables outside
their natural season also contributes to climate change. Consequently, it can
hardly be expected that the Court would interpret environmental protection as
a justification of promotional campaigns which try to enhance consumer
ethnocentrism (as well as reverse measures of advertising restrictions) with
the aim of obstructing import, while at the same time still relying on high
levels of export. Furthermore, there is a great variety of products on the market
and although one can accept that long distance transportation harms the
quality of e.g. fresh strawberries and tomatoes, it does not in the same way
reduce the quality of dry salami or flour. Should States really commit
themselves to limiting the transportation of goods in order to reduce global
warming, they should moreover stand up for export limitations and even deny
tourists that crowd national roads in the holiday seasons… however this seems
rather unlikely. In this respect, the Court has consistently stated that
environmental protection will not always justify national barriers to free
movement, especially when there is insufficient evidence of the risk and when
the measures are not proportionate to the importance of free movement of
goods.123 Despite the fact that the high level of protection is considered as the
most important substantive principle of European environmental policy,124 the
Court clarified that such a level of protection does not necessarily have to be
the highest that is technically possible.125 It can therefore be concluded that
the principle presents a moving target, an idea of continuous improvement of
environmental protection standards across the Member States, without a
clear-cut rule which would justify all kinds of national measures, including
those which perhaps only consider environmental protection from afar.
Should the environmental dimension be decisive when regulating trade, why
not require shops to only market goods that originate within a 50 kilometres
radius, for example, be it within or outside the national borders. “Buy local”
campaigns are in this respect widely manipulated and subject to various
122. Selick, “The buy-locally-owned fallacy”, <www.econlib.org/library/Columns/
y2008/Selicklocal.html> (last visited 30 Aug. 2011).
123. Case C-297/05, Commission v. Netherlands, [2007] ECR I-7467, Case C-463/01,
Commission v. Germany, [2004] ECR I-11705.
124. Jans and Vedder, European Environmental Law (Europa Law Publishing, 2008), p. 36;
see also Morgera, “Introduction to European environmental law from an international
environmental law perspective”, University of Edinburg Law School, Working paper 2010/37,
<papers.ssrn.com/sol3/papers.cfm?abstract_id=1711372> (last visited 30 Aug. 2011).
125. Case C-284/95, Safety Hi-Tech Srl. V. S. & T. Srl, [1998] ECR I-4301. See also the
A.G.’s Opinion in Commission v. Austria, op. cit. supra note 109, para 133, where she concluded
that only 1.5% reduction of NO2, does not justify severe barriers to free movement of goods.
interpretations. Because of this, critics use the term “local washing”126 instead
of “buy local”, as is demonstrated for example by HSBC, one of the largest
banks on the planet, which calls itself “the world’s local bank”127 and also by
the food giant Unilever, which advertises Hellmann’s mayonnaise with the
slogan “Eat Real, Eat Local”.128 One can therefore only wonder how much
good these campaigns really do for the environment.
5. Promotional campaigns at the EU level
5.1. New European strategy for promoting the tastes of Europe
Not all campaigns and quality labels that promote a certain group of products
are undesirable. An ever increasing number of products on the market can
easily confuse consumers as to their quality. Furthermore, considering public
health and environmental aspects, some types of products (such as fruits and
vegetables) should generally be preferred by consumers in comparison to
others (such as sweets and alcohol); naturally grown food should be preferred
to more processed products etc. Public authorities at all levels should therefore
make an effort and inform consumers about the quality of goods and bring to
their attention the health, environmental and other aspects of the goods on the
market. Product promotion is primarily the role of producers, distributors and
Member States, but the EU also plays a role as a facilitator and supporter.129
For these reasons, information provision and promotion of agricultural
products on the EU internal market and in third countries are covered by a
special EU regulation.130 On the basis of this regulation the EU co-finances
promotional campaigns that highlight the quality, nutritional value and safety
of EU farm products and their derivatives, as well as campaigns that draw
attention to other intrinsic features and advantages of EU products, such as
specific production methods, labelling, animal welfare and respect for the
environment. These campaigns can run inside the EU borders and beyond,
126. Mitchell, “The corporate co-opt of local”, New Rules Project, 9 Sept. 2009,
<www.newrules.org/retail/article/corporate-coopt-local> (last visited 23 Aug. 2011).
127. See <www.hsbc.com/1/2/> (last visited 30 Oct. 2011).
128. See <vimeo.com/5236966> and <infosthetics.com/archives/2009/07/eat_local_
eat_real_video.html> (last visited 30 Oct. 2011).
129. See e.g. COM(2011)436 final, cited supra note 6, p. 8 (para 4.1.).
130. Council Regulation (EC) No. 3/2008 on information provision and promotion
measures for agricultural products on the internal market and in third countries, O.J. 2008, L
3/1.
Buy Irish 321
with the objective to penetrate new markets for EU farmers.131 However, in

light of the Buy Irish judgment, the Regulation prohibits the promotion of
products based on their (national or regional) origin132 – except in cases of
specific regions recognized by EU law.
Instead of promoting the purchase of specific national products, EU thus
wants to encourage the purchase of EU products. In its 2011 Green Paper on
promotion measures for agricultural products,133 the Commission stresses
that the quality of Europe’s agricultural and agri-food products is widely
acknowledged, emphasizing that as a result of tradition, know-how and
innovative abilities of producers, the European model is also the legacy of a
strong Common Agricultural Policy and of standards of production
unmatched anywhere in the world. It furthermore adds that the EU has a
culinary heritage of great diversity which should be exploited to the full.134
Taking into considering, on the one hand, that these advantages of EU
products have not yet been sufficiently promoted and the surfacing of new
competitors in traditional EU and emerging markets on the other, the
Commission is planning a new promotion and information strategy, which
will come into effect in 2013 and will promote Europe’s agriculture sector
“which delivers food security, a sustainable use of natural resources and more
dynamic rural areas”.135 The reform is therefore trying to replace national
consumer ethnocentrism with a European one. In this respect it remains to be
discovered to what extent euro-centrism is present among European
consumers and to what extent national promotional campaigns, as well as
economic and various other (most notably food and disease) crises, have
rooted negative stereotypes in consumers’ purchasing sentiments towards
goods from other Member States.
131. European Commission, “Promoting European Union farm products: A helping hand”,
<ec.europa.eu/agriculture/promotion/documents/brochure_en.pdf> (last visited 16 Aug.
2011).
132. Art. 1(2) of Regulation 3/2008 provides: “The (promotional) measures… shall not be
brand-oriented or encourage the consumption of any product on grounds of its specific origins”.
See also the preamble and Art. 4(2) of Commission Regulation (EC) No. 501/2008 laying down
detailed rules for the application of Council Regulation (EC) No. 3/2008 on information
provision and promotion measures for agricultural products on the internal market and in third
countries (O.J. 2008, L 147/3), which similarly provides, that: “Any reference to the origin of
products shall be secondary to the central message of a campaign…”.
133. COM(2011)436 final, cited supra note 6.
134. Ibid., p. 2.
135. Ibid. The reform is accompanied by a proposal for new quality schemes – Proposal for
a Regulation on agricultural product quality schemes, COM(2010)733 final. For a comment see
Dévényi, “The new proposal on agricultural product quality schemes – Quality legislation on
quality questions?”, 6 EFFL (2011), 159–166.
5.2. Shortening distribution channels on the internal market
At the same time, however, the Commission is crossing into a danger zone,
giving the impression that “buy domestic” and “buy local” initiatives of
Member States could be legitimate – predominantly for the above-discussed
reasons of tradition, food security and their environmental impact. In the 2011
Green paper, the Commission states that regional and local markets are an
essential meeting place for producers and consumers – as they enable the
former to receive rewards for their labour more efficiently and the latter to
contribute to the development of their local areas, reduce the environmental
impact of their consumption habits and access a wide variety of products
rooted in their traditions and ways of life.136 Considering the Court’s
reasoning in Buy Irish and in German Quality Label, this certainly portrays a
“new approach” towards national production and purchasing triggered by the
three crises. The Commission itself declares that the “new approach” is a
response to the “growing expectations in relation to local produce, tradition
and authenticity”, as well as to the need to reaffirm the social link between
consumers and producers and to capitalize on the freshness, innovation and
nutritional qualities of produce and product awareness.137 Even though the
Commission is not very precise regarding the kind of shortening distribution
channels measures it will assent to in the future, its support for increased
promotion of local goods is evident, especially taking into account its explicit
reference to financial assistance for the creation of local commercial centres,
shops and markets which will aid in the marketing of local products. In this
respect, the Commission is citing arguments that sponsors of “buy domestic”
and “buy local” campaigns normally make use of, stating that:
“(s)hort distribution channels increase the income of producers and ensure
the survival of a large number of farms, particularly thanks to higher
margins, a reduction in transport costs and greater autonomy with respect
to the agro-industrial sector. They can help improve environmental
performance in terms, for example, of limiting CO2 emissions or
packaging. From a cultural and social point of view, they encourage
collaborative decision-making and local governance that is more sensitive
to the specific needs of the areas concerned and preserve and support local
traditions, while at the same time linking the product to a geographical
area shared by producers and consumers”.138
136. COM(2011)436 final, cited supra note 6, p. 4–5.

137. Ibid., c. 3.1.1.
138. Ibid.
Buy Irish 323
Although the agricultural ministers in the Council must be in favour of the

Commissions’ “new approach”, it is difficult to imagine how distribution
channels in the EU internal market will be shortened without compromising
free movement of goods as we know it – at least in the Court’s case law if not
in practice – and how Article 1(2) of Regulation 3/2008, prohibiting
encouragement of consumption of goods based on their specific origin, will
be restored in the future. Perhaps the Commission should be clearer on this
point in the Green Paper and in the legislative proposals which might follow
and it should take cautious steps towards the aims that are considered
legitimate by the Court. Should the Commission assent to raising the
floodgate for various local measures aimed at increasing the consumption of
local agricultural and food products, it will with difficulty fight protectionism
in other economic sectors. Although one may understand its support for local
consumption of fresh fruits and vegetables, it is hard to see how the
Commission could prevent many other local products (from within and
outside the agricultural and food sector), whose predominant characteristics
are not freshness, from being marketed in the same local commercial centres.
It is also difficult to imagine what other measures to shorten the distribution
channels (besides local shops) the Commission will accept in light of this
“new approach”. Could the States be allowed to boost ethnocentrism, prohibit
advertising of goods transported from more distant Member States or even
prohibit selling such products in local shops? Such measures would not only
be contrary to the legal principles guaranteeing free movement of goods, but
they also highlight a more general question – i.e. what kind of a “single”
market do we want? – one with isolated national markets, one with regional
alliances (e.g. Scandinavian region, Central European region etc.) that are
territorially close enough for distribution channels not to be too long, or a true
“single market having the characteristics of a domestic market”?139
Something that might have been devised as the Commission’s approval of
local fruit and vegetable markets, which alone could be considered as a de
minimis barrier to the internal market,140 could therefore significantly
139. See Commission v. United Kingdom, cited supra note 25, para 17.
140. Although such barriers are prohibited by the Court, too, considering that it held that a
State measure can constitute a prohibited measure having equivalent effect even if: it is of
relatively minor economic significance; it is only applicable to a very limited geographical part
of the national territory or if it only affects a limited number of imports/exports or a limited
number of economic operators – see Joined Cases 177 & 178/82, Van de Haar, [1984] ECR
1797; Case 269/83, Commission v. France, [1985] ECR 837; Case 103/84, Commission v. Italy,
[1986] ECR 1759. See also European Commission, Free movement of goods, guide to the
application of Treaty provisions governing the free movement of goods (2010), available at
<ec.europa.eu/enterprise/policies/single-market-goods/files/goods/docs/art34-36/new_guide_
en.pdf> (last visited 4 Nov. 2011).
compartmentalize the EU internal market to the detriment of both the

consumers and the (majority of) producers.
The Green Paper also blurs the traditionally different approaches in trade
policy on the internal (EU) and external (global) market. As the trade
liberalization process progressed faster on the EU internal market than on
the international one, many practices are legitimate on the latter, but not on the
former.141 For this reason, campaigns such as “Buy American” that date as far
back as the Boston Tea Party,142 are still widespread. “Buy domestic”
campaigns also occur in other EU trading partners and it is understandable that
the EU does not want to fall behind. It is thus the Commission’s responsibility
(as declared in the recent Green Paper) to strengthen the EU agricultural
production on the global market:
“Consumption of European products needs to be encouraged, on the one
hand, by promoting the image of the products and, on the other, by raising
awareness of Europe’s quality systems among consumers and among
producers… Europe must use all of its energy to promote its specialities
and its production methods in the same way as its main trade partners
(United States, Australia, Canada, etc.) are doing”.143
In contrast to developments on a global scale, the EU internal market was

established through the EU Court’s case law on agricultural and food products
and the prohibition of national “buy domestic” and “buy local” campaigns
within the internal market present the core principle guaranteeing free
movement of goods. As is evident from the Court’s decision in Buy Irish,
promoting domestic goods solely on grounds of origin is equivalent to
promoting opposition to the purchase of imported goods. Purchasing power
and consumption needs of consumers are limited and (successful) promotion
of domestic goods leads to a lower rate of sales of imported goods. This is
(explicitly or implicitly) the main objective of the promotion. It is doubtful
whether the Commission is really proposing a change of this thirty year old
law, but if it is, then it should do so with a great amount of consideration for the
consequences, not only for the promotion of food, but also for the promotion
of other types of goods and free movement in general.
141. One important difference between EU free movement rules and GATT provisions is
that according to the former actual success of the promotion is not a relevant factor when
considering whether national legislation or a business practice is in line with EU law. By
contrast, under the GATT rules actual hindrance to free trade must be proved – see Case
Argentina – Hides and Leather (paras 11.20 and 11.21).
142. Cf. Frank, Buy American: The Untold Story of Economic Nationalism (Beacon Press,
2000).
143. COM(2011)436 final, cited supra note 6, paras 3.2.1. and 4.1.
Buy Irish 325
6. Concluding remarks: Is Buy Irish worth preserving?
In times of crisis, ethno/local-centrism is clearly a widely desired consumer

orientation and public and private resources are being spent in order to create
such an orientation. Even though the EU is committed to free trade principles,
some “buy domestic”/”buy local” campaigns are in accordance with EU law,
such as those organized by private entities, as well as campaigns performed by
the EU itself, whereas State sponsored campaigns are in breach of Article 34
TFEU. More important, however, may be the question whether any of these
campaigns comply with economic principles. Most economists claim they are
counter-productive, as they are at odds with the principle of comparative
advantage. Almost 200 years ago Ricardo argued that free trade, whether
across a town, across a nation or world-wide, causes people to produce goods
with a comparative advantage, which in turn creates profit. That this principle
is indeed “Ricardo’s Difficult Idea”, as Nobel Prize winner Krugman
described it due to the fact that many non-economists disagree with it,144 was
again demonstrated by the current economic crisis. Although heavily justified,
ethnocentric campaigns are in reality a non-coercive version of protectionism,
for which there is plentiful evidence that it actually reduces a nation’s overall
prosperity rather than increasing it.
Nonetheless, this does not mean that consumers should only purchase
products from big supermarket chains, but that they should have a choice – a
choice to buy from a local supplier, when positive attributes of local supply
(e.g. freshness of the product) are the priority; and a choice to buy from a large
supermarket chain, when price and variety are the consumers’ prime concern
– without feeling guilty or being burdened by the thought that their “money is
a vote, which (they) can use every time (they) go shopping”.145 When buying
goods, consumers should be free to make shopping decisions, not moral ones,
balancing quality and price. Local food is generally more expensive than
non-local food – if that were not so, there would be no need to press people to
“buy domestic”. In this respect in the 1985 campaign an (obviously
non-patriotic) Greek financial economist stated: “(t)his effort to brainwash
Greeks into buying local goods simply won’t work because, on the whole,
goods imported from the West are cheaper and of superior quality to locally
manufactured products”.146 EU law does not require such extreme xenomania,
but a moderate degree of respect for foreign products and producers.
144. Krugman, “Paper for Manchester conference on free trade”, March 1996,
<kisi.deu.edu.tr/sedef.akgungor/Microeconomic%20Theory%201%20Fallm2009/Krugman
(1996b).pdf> (last visited 30 June 2011).
145. “Why buy ethically”, <www.ethicalconsumer.org/ShoppingEthically/Topethicaltips/
WhyBuyEthically.aspx> (last visited 30 Aug. 2011).
146. See op. cit. supra note 29.
In conclusion it is sound to say that trade is not just about economics; it also
affects national tradition, welfare of workers, food security and the
environment. These interests should be appropriately protected; however,
ethnocentric campaigns do not seem to consistently follow these aims.
Environmental, health, labour and other legal and ethical considerations in
relation to the imported goods should be resolved by the competent authorities
before goods reach the shelves.
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COMMON MARKET LAW REVIEW

CONTENTS Vol. 49 No. 1 February 2012

Editorial comments, Some thoughts concerning the Draft Treaty on a 1–14

Case C-69/10, Brahim Samba Diouf v. Ministre du Travail, de

Book reviews 417–446

Common Market Law Review is published bimonthly.

Printed on acid-free paper.

© 2012 Kluwer Law International. Printed in the United Kingdom.

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FREE MOVEMENT OF GOODS IN A LABYRINTH: CAN BUY IRISH

* PhD, Assistant Professor of EU Law, Faculty of Law, University of Maribor, Slovenia. I

4. Case 249/81, Commission v. Ireland, [1982] ECR 4005, para 30.

2. Three crises challenging global free trade

The wide-ranging development which could have a considerable effect on the

2.1. Economic crisis

2.2. Food crisis

2.3. Climate change crisis

10. Commission Communication, “Tackling the challenges in commodity markets and on

atmospheric composition.13 Although there is still considerable uncertainty

2.4. National responses

13. Ibid., p. 1721.

3. Consumer ethnocentrism and free trade

3.1. Definitions of consumer ethnocentrism

The term ethnocentrism was introduced by the American sociologist Sumner

3.2. Sources of consumer ethnocentrism

Consumer ethnocentrism can be the product of culture and parental

workers’ unions organize campaigns in order to convince consumers to give

influence. On the other hand, informal (non-coercive) influence on consumers

3.3. Ethnocentric market campaigns of EU Member States

the leader of the Athens’ prefecture, has created a campaign

35. See <www.sopexa.com/food_wine_lifestyle_connections.php?lang=FR> (last visited

booming campaign “Buy Croatian”,42 despite the fact that this EU

4. Consumer ethnocentrism and EU single market rules

42. Campaign’s website: <www.kupujmo-hrvatsko.hr/> (last visited 22 Aug. 2011).

EU institutions to integrate the EU market and remove age-old barriers

4.1. The sponsor’s role

One important and distinguishing feature of abovementioned campaigns is

By contrast, the Court took a different stance and as a result ethnocentric

47. Case 8/74, Procureur du Roi v. Dassonville, [1974] ECR 837.

actions and the appropriateness of national response to such measures can

goods) would generally be prohibited. Only promotions of domestic goods by

4.2. Ethnocentric campaigns as a barrier to free movement of goods

66. Commission v. Ireland, cited supra note 4.

promotion is obviously a very fine one. In order to clarify questions to which

The Commission added that references to quality control should only be

73. Commission communication concerning State involvement in the promotion of

4.3. Justifying State campaigns that enhance consumer ethnocentrism

4.3.1. General observations

4.3.2. Public finances’ hardships and job preservation

80. Ibid., p. 100.

When justifying domestic purchase it is also considerably widespread to

4.3.3. Consumer protection

a “reasonable balance” between references to quality and references to

4.3.4. National tradition and culture

86. Jarvis, op. cit. supra note 51, 715.

the German Biersteuergesetz,89 where Germany defended traditional beer

89. Case 178/84, Commission v. Germany, [1987] ECR 1227.

4.3.5. National food self-sufficiency and food security

101. Ibid., para 34.

4.3.6. Environmental protection

Popularity of environmental protection and climate change debates adds

justification.115 However, as pointed out by Advocate General Trstenjak in

5. Promotional campaigns at the EU level