Browsing by Author "Candan, Tolga"

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    Avrupa Birliği 2003 Yılı İzleme ve İlerleme Raporlarında Türkiye Dışındaki Aday Ülkelerin Durumu
    (2003) Akgül Açıkmeşe, Sinem; Akdemir, Erhan; Arslan, Ceran; Candan, Tolga; Kurtbağ, Ömer; Özuğurlu, Metin; Senemoğlu, Deniz; Uysal, Kaya
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    Topluluk Hukukunda miktar kısıtlamasına eş etkili önlemler
    (Sosyal Bilimler Enstitüsü, 2008) Candan, Tolga; Arat, Tuğrul; Uluslararası İlişkiler
    28th article of the EC Treaty has banned quantitative restrictions onimport and all measures having equivalent effect among the Member States. Inconjunction with the completion of the Customs Union on July 1, 1968,quantitative restrictions have ever lost their importance largely, measureshaving equivalent effect remained as the non-tariff barriers to be removed toensure free movement of the goods.?Measures having equivalent effect? were not specified in theEstablishing Treaty. In order to overcome this shortcoming, both theCommission and Community jurists and academicians attempted to define the?measures having equivalent effect? on the basis of the regulations in force. TheCourt, initially giving preference to Commission?s directive number 50/70, hasneeded to formulate an abstract definition of the concept of ?measures havingequivalent effect? upon Member States? hindering of free movement of goodsthrough different measures and in an increasing manner.Through the Dassonville decision of 1974, the Court has accepted ?alltypes of national commercial arrangement hindering intra-Community tradeactually or potentially; directly or indirectly? as the ?measures having equivalenteffect?.With this wide definition, the opportunity to assess multitudinousdifferent national regulations in the scope of application of 28th article hasarisen. Despite these national regulations, which are in the scope of the 28tharticle, were assessed as ?measures having equivalent effect, not all the timethey constitute a contradiction to the Community law. The exceptions indicatedin the 30th article constitute the excuse for the restrictions of free movement ofgoods in the case of compliance to proportionality principle, since the nationalregulations that may be accepted as measures having equivalent effect wouldcomply with the law.In time, national regulations that were not settled in the scope of 30tharticle but consisting legally protected legitimate interests such as protection ofenvironment and protection of consumer rights has come before the Court. TheCourt has narrowly commented the judgment of 30th article since the mentionedarticle was an exceptional judgment; and has adopted a new decision on 1979regarding regulations covering these new subjects. With the Cassis de Dijondecision on national regulations that do not include discrimination, the Courtordered that ?different national regulations of the Member States regarding theterms of placing on the market of the goods may be excused because of statutoryobligations of public interest such as protection of the public health, protection ofconsumer rights, prevention of unfair competition or ensuring justice incommercial activities, despite these regulations may effect inter-Community tradenegatively.?This new definition entails mutual recognition principle. Any commodityproduced and put in the market in line with the regulations of a Member State,as a principle, can not be hereafter impeded to be sold in the market of othermember states. The Court, in its latter decisions has extended the concept ofstatutory obligations of public interest as to include protection of theenvironment and policies regarding national culture. Another remarkable pointin this decision was that national regulations were mostly related directly to thecommodity, its shape, formation and packaging. In the following years, newnational regulations that impose restrictions in selling of the goods have becomecases before the Court. The Court in the beginning has not evaluated suchregulations that was not directly effecting intra-Community trade under thescope of 28th article; after these decisions which were also criticized by thediscipline, Court has adopted the famous Keck and Mitouard decision which leftthe national regulations regarding the terms of sale of the commodities out ofthe scope of 28th article. According to this decision, ?national regulations thatcover all the market players dealing with commercial activity in the mentionedmember state, that do not discriminate between local and foreign products and thatwere implemented in the same manner, practically and legally, in the launch of theproducts to the market? were not accepted as the ?measures having equivalenteffect?.In accordance with this decision, regulations on the terms of sale do notviolate the Community Law.The Court has determined the criteria for various national regulationsthat impede free movement of goods through developing three differentapproaches. In this vein, national regulations that would cause failure to reachInternal Market targets of the Community through hindering free movement ofgoods will be prevented.In the context of the actual study, legal aspects of the decisions that weredeveloped by the Court of Justice of the European Communities to solve thecontroversies caused by the implementation of the judgment imposed by the28th article banning quantitative restrictions and ?measures having equivalenteffect? on import were analyzed.