A competence to protect: the pursuit of non-market aims through internal market legislation

Introduction On 16 September 2009, the EU adopted a Regulation on trade in seal products, whose legal basis was Article 95 EC (now renumbered since 1 December 2009 as Article 114 TFEU). This is, therefore, a piece of internal market legislation whose object is defined as to ‘harmonise the rules across the Community as regards commercial activities concerning seal products, and thereby prevent[ing] the disturbance of the internal market in the products concerned’. The main objective or aim of this measure, though, is the protection of the welfare of animals in conjunction with the protection of cultural diversity; the Regulation introduces a general ban on the marketing of all products made from seals because of the conditions, considered to be unacceptable, in which those animals are killed (animal welfare concern), but this is accompanied by a conditional derogation for products resulting from hunts traditionally conducted by Inuit and other indigenous communities (cultural diversity concern). What happened on this occasion is quite common in the legislative practice of the EU, namely the pursuit of one or more non-market aims by means of internal market legislation. Whereas it is sometimes said that the role of internal market legislation ‘is limited to eliminating distortions to the competitive environment within the internal market’, this is not true in terms of actual legislative practice, nor is it true as a matter of EU constitutional law. Admittedly, the Court of Justice of the European Union (CJEU) stated in its first Tobacco Advertising judgment of 2000 that Article 95 EC did not vest in the Community legislature ‘a general power to regulate the internal market’. Rather, measures based on Article 95 were permissible only if they actually and genuinely contribute to eliminating obstacles to trade and to removing distortions of competition. Those two aims correspond to the two justifications for making legal rules and principles more uniform across jurisdictions that are most often cited in the economic analysis literature, namely: transboundary externalities and fair competition.