On liqueurs and memes: The Cassis de Dijon Case and its memes

On 20 February 1979, the European Court of Justice (ECJ) delivered the Case 120/78, commonly known as the Cassis de Dijon Case. Alongside with the Dassonville, and Kecka cases, Cassis de Dijon is the landmark of the European Single Market legal acts. The Cassis de Dijon case came forth the ECJ as a question for a preliminary ruling on the validity of the German law of 1922 on the monopoly of Spirits. That law imposed restraints on the import of fruit liqueurs, fixing minimum alcohol content for both domestic and imported products. In its decision, the ECJ set the principle of mutual recognition, ruling that a product lawfully produced and sold in one Member State must be accepted in other Member State, under Art. 30 EEC Treaty (Art. 34 TFEU).

This pathbreaking case also led to three other different concepts: the theory of information paradigm, the confident consumer, and the “new approach”.

So far, there is nothing much new here. What I want to draw attention at is the unforeseen relation between the Cassis de Dijon Case and "memes". I should apologise to those of you who came looking for internet memes, those chucklesome images with some subtitle attached to it. The memes I am talking about here are the biological memes as proposed by Richard Dawkins.

The biologist Richard Dawkins coined the word "meme" in his 1976 book “The Selfish Gene”. In this book, Dawkins introduces the idea of a culture replicator, i.e. a unit of cultural transmission replicated and transmitted to a group, be it human or non-human, and clung to individuals brains. A meme can be different song patterns among the saddleback birds (See Jenkins(1978)), the weird tradition of white-faced capuchin monkeys of touching each other eyeballs (See Balter (2010)), language, fashion, lullabies, religion or ideas. That brings us to the ‘idea-meme’: an “entity that is capable of being transmitted from one brain to another” and its propagation can vary from sound waves to books.

When deciding the Cassis de Dijon case, the ECJ created not only one, but at least four idea-meme. The theory of information paradigm, the confident consumer, the “new approach” and also the principle of mutual recognition are all piece of information replicated in every brain that read the decision itself or a textbook about it. I must point out here that as Dawkins himself admits memes are not high-fidelity replicators, i.e., they are subject to continuous mutations. Such as genes, memes also evolve, and the memes of the Cassis de Dijon are no exception.  They had evolved and are still visible today. The replication -or offspring- of legal memes can be new principles, judge-made laws, statutes, or legal acts like the ones of the European Union. As such the replication can be either short or long-lasting.

The short-lasting replication is observable, e.g., in Case 788/79 and the Communication from the Commission concerning the consequences of the judgment. In both situations, the Cassis de Dijon mutual recognition meme doesn’t perpetuate, this means that there aren’t many ramifications of the original meme and it has not lasted long. Those replications are also observable in cases C-46/93 (Brasserie du Pêcheur v. Germany) and C-48/93 (The Factortame v. UK).

A long-lasting replication, on the other hand, can have various ramifications, with a myriad of legal acts based on it. That’s the case of the “new approach” meme with some Regulations adopted by the EC aiming to provide common rules for the safety of non-food products. Regulation (EC) 764/2008, Regulation (EC) 765/2008, and Decision 768/2008 don’t aim to regulate the importation of food or alcoholic drinking as a mere replication of the original meme. The legal acts aim to set the general rules for the safety of other products not related to the product group of the decision. The “new approach” meme is also replicated in the Directive 1999/44/EC, notably in its article 2 (1)(2) on the conformity with the contract of sale of consumer goods. Those are ingenious ramifications of the original ‘idea-meme’. For what we can see, the Cassis de Dijon produced many memes and even forty years after those memes keep pushing the European Common Market forward.

Studying legal memes is not a usual and unfruitful endeavour but a method to understand the past, present, and future of principles and rules. It is an opportunity to include the mellifluous method of evolution in legal analysis.

 Written by M-EPLI PhD candidate Bruno Fernandes Vieira for Law Blogs Maastricht