dr. Agne Limante
MA candidate in EU Law, King’s College London; PhD in EU law, Vilnius University; Post-Graduate Diploma in EU Law, King’s College London
When in November 1993 the CJEU presented its ruling in Keck case[i], seeking, inter alia, ‘to clarify the law’, academic society reacted to it with a plethora of studies on how to ‘clarify the clarification’[ii]. In that ruling the Court held that French rules prohibiting reselling at loss were not caught by Article 34 TFEU since they related merely to indistinctly applicable ‘selling arrangements’ having no adequate effect on intra-EU trade.
It was clear that the judgement signalled contradiction in the scope of application of EU rules on free movement of goods. As noted by prof. Weatherill, Keck was doubtless intended to empower national courts to dismiss far-fetched attempts to deploy internal market law which was clogging up the EU judicial system with the minutiae of purely local affairs[iii]. However, the borders of such limitation and its content remain blurred until today.
The analysis below will re-think Keck from the position of market access test. It firstly shortly examine the nature of ‘selling arrangements’ introduced by Keck, and later will turn to the discussion on the market access test as an alternative approach to Keck.
Restrictive measures falling under Keck
According to the settled case-law, all trading rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, trade within the EU are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 34 TFEU[iv]. However, according to Keck, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements, within the Member State of importation, is not such as to hinder trade between Member States so long as, first, those provisions apply to all relevant traders operating within the national territory and, secondly, they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States.
Following the above, while retaining the prohibition of hindrance to market access set in Dassonvilleand the general non-discrimination requirement, Keck made a distinction between:
(i) ‘rules that lay down requirements to be met by goods’, related to inherent characteristics of products, and per se are considered to fall under Article 34 TFEU;
(ii) ‘selling arrangements’, regulating questions extrinsic to goods. They are covered by Article 34 TFEU only if they discriminate against imports;
(iii) ‘residual rules’, as a separate group named in subsequent case-law and doctrine. They fall under Dassonville as affecting intra-EU trade.
Identifying selling arrangements, however,appeared to be a puzzle. Although they seem to cover restrictions on when[v], where and by whom[vi] the goods may be sold, as well as advertising restrictions[vii] and price controls[viii], these general elements hardly allow predicting outcomes in individual cases.
It should also be noted that during last decades the Court increasingly adopted a broad interpretation of indirect discrimination bringing the rules on marketing within the scope of Article 34 TFEU. Indeed, as stated by prof. Spaventa, aside from Sunday-trading type of rules, during the period of 1997-2008, there were only two cases – Burmanjer and A-Punkt – where selling arrangements were found to be non-discriminatory and thus fell outside the scope of Article 34 TFEU[ix].
Market access test as an alternative to Keck
Since Keck received a lot of criticism, there were considerable attemps to reformulate it and to suggest alternatives. The majority suggested market access test to be the panacea.
As Oliver and Enchelmaier[x] note the most authoritative assault ever mounted against the reasoning in Keck was that of AG Jacobs in Leclerc-Siplec[xi]. He considered that it was inappropriate to make such a rigid distinction between “rules that lay down requirements to be met by goods” and ‘selling arrangements’, and that the test of equality is not in line with the objectives of the Treaty[xii], namely, the establishment of a single market. At the same time AG Jacobs suggested a test aimed at checking whether a measure exerts a substantial restriction on the market access[xiii]. Since Leclerc-Siplec related to partial ban on advertisement (TV advertising), he came to a conclusion that this did not amount to substantial restriction of the market access. However, he also offered an example of direct TV marketing: here prohibition of TV advertising would mean substantial restriction. Comparably, in his opinion in Alpine Investments[xiv] dealing with restriction on ‘cold calling’ potential clients offering financial services, AG Jacobs argued that a question whether a national rule restricts freedom to provide services “should be determined by reference to a functional criterion, that is to say, whether it substantially impedes the ability <…> to provide services”.
Prof. Weatherill[xv] chose another direction stating that prohibition to resale at loss in Keck escaped Article 34 TFEU not because these were rules affecting selling arrangements applied equally in law and in fact, but because they were measures applying equally in law and in fact and exercising no direct impediment to access to market of a Member State. There was no obstruction to the realization of economies of scale and wider consumer choice. Going further, prof. Weatherill also sugests refining Keck test along the following wording: measures introduced by a Member State which apply equally in law and in fact to all goods or services without reference to origin and which impose no direct or substantial hidrance to the access of imported goods or services to the market of that Member State escape the scope of application of Articles 34 and 66 TFEU. Following such suggestion, complete bans on sale of goods or services (as in Schindler[xvi]), even if equally applied, would still have to be justified for having direct and substantial hidrance to market access.
AG Maduro in Alfa Vita[xvii] also stressed market access. He brought to the attention three criteria to be used when deciding on application of Article 34 TFEU. First, discrimination based on nationality must be prohibited. Second, the imposition of supplementary costs on cross-border activity has to be justiﬁed. Lastly, the measure will be a hidrance to market access if it impedes to a greater extent access to the market and putting into circulation of products from other Member States than trade on national market.
However, other authors do not see much use in notions such as ‘substantial barrier’ or in introducing other types of treshold. They claim that this would introduce an unwanted de minimis test, while ‘barrier to market access’ criterion is inherently nebulous[xviii]. Even if it is possible to distinguish restrictive rules that have minor effects on intra-EU trade, such as ‘modest effect on sales’,‘purely hypothetical and totally uncertain and indirect effect on market access’[xix], a large grey area is left between ‘minor’ and ‘substantial’.
Use restrictions, Keck and market access
Following Moped trailers[xx] and Mickelsson & Roos[xxi], the contours of Keck seem even more blurred and, again, subject to various interpretations. Both cases were related to the limits of market access and restriction of use – prohibition of towing the motor trailers and prohibition on use of personal watercrafts respectively.
These cases reveal the complexity of the question. AG Bot in Moped trailers case argued that the extension of Keck to measures regulating the use of goods would run against the aims of the internal market. AG Kokot, on the opposite, in Mickelsson & Roos suggested to extend Keck criteria to the use arrangements due to comparable characteristics.
In Moped trailers CJEU re-defined the notion of barriers to intra-EU trade underlining the market access. It stated that “any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by the [measures having equivalent effect] concept“. The Court reaffirmed this market access formula in Mickelsson & Roos.
Some authors guessed that with this case law the Keck selling arrangements doctrine might have been consigned to history books: though the Court did not openly overrule Keck, the market access formula might suggest, in fact if not in law, the end of the Keck dichotomy[xxii]. The Court made clear that any measure which may impede access to the market falls under Article 34 TFEU. Although distinguishing product-related rules remains necessary, delimitation of selling arrangements looses significance.
It is, however, a bit suprising that the suggested test established no type of threshold or qualifiers to be met by national measure. On the other hand, as noted by prof. Snell, the CJEU seems to focus on the significance of the impact of the measure with all the uncertainties this approach entails, though at the same time refusing to clearly state that rules with insignificant effect fall outside the Treaty[xxiii].
Looking from the other side, confronting Keck and market access test, we might be looking for opposition where it does not exist. Keck is about market access. As stated by Wenneras & Boe[xxiv], the CJEU in Moped trailers and Mickelsson & Roos has just consolidated and clarified what was implicit in Keck, namely that Article 34 TFEU prohibits measures that discriminatorily, in law or in fact, restrict market acess for imported products or which prevent/hinder market access.
Nevertheless, it is often hard to identify, which of the elements plays the decisive role in CJEU judgements – market access, discrimination and protectionism, economic freedom. One can have an impression that those tests remain elusive and are often used in an intuitive way, after firstly looking whether discrimination could be established, having in mind the possible justification in certain case and combining this intuition with the general feeling of what is reasonable and logical.
[i] Joined Cases C-267/91 and C-268/91 Keck and Mithouard  ECR I‑6097.
[ii] Weatherill. After Keck: Some thoughts on how to clarify the clarification. (1996) 33 CMLRev, p. 885-906.
[iv] Case 8/74 Dassonville  ECR 837.
[v] Case C-401/92 and C-402/92 Tankstation ’t Heukskeand Boermans  ECR I-2199, Case C-69/93 and C-258/93 Punto Casa and PPV  ECR I‑2355.
[vi] Case C-391/92 Commission v Greece  ECR I‑1621, Case C-387/93 Banchero  ECR I-1085. It is worth noting, that restrictions related to where the product might be sold are captured by selling arrangements if they relate to restrictions on physical location of selling place (pharmacy-shop-district). Selling by internet is given a different treatment. In DocMorris (C-322/01,  ECR I-14887), case concerning prohibition of selling medicines by virtual pharmacies, the CJEU hold the restriction to be de facto discrimination against imports. Internet provided a “more significant way” to market access for sellers established in other Member States.
[vii] Case C-292/92 Hünermund and Others  ECR I-6787; Case C-412/93 Leclerc-Siplec  ECR I-179; Cases C-34/95 to C-36/95 De Agostini  ECR I-3843, Case C-405/98 Gourmet  ECR I-1795. However, often advertising restrictions might have discriminatory aspect. As AG Jacobs insisted in Leclerc-Siplec, “measures that prohibit or severely restrict advertising tend inevitably to protect domestic manufacturers and to disadvantage manufacturers located in other Member States“.
[viii] Case C-63/94 Belgapom  ECR I-2467.
[ix] Spaventa. Leaving Keck behind? The free movement of goods after the rulings in Commission v. Italy and. Mickelsson and Roos. (2009) 34 ELRev. 914-932.
[x] Oliver & Enchelmaier. Free Movement of Goods: Recent Developments in the Case Law. (2007) 44 CMLRev. 649–704.
[xi] Case C-412/93 Leclerc-Siplec  ECR I-179.
[xii] In AG Jacobs words: “If an obstacle to inter-State trade exists, it cannot cease to exist simply because an identical obstacle affects domestic trade”.
[xiii] It is interesting to note, that AG Jacobs in general tends to analyse measures in the light of the scope of their effect. Criticizing locus standi in annulment actions (UPA case), he also suggested a test of “substantial negative effect” for interpretation of individual concern.
[xiv] Case C-384/93 Alpine Investments  ECR I-1141.
[xv] Weatherill. After Keck: Some thoughts on how to clarify the clarification. (1996) 33 CMLRev, p. 885-906.
[xvi] Case C-275/92 Schindler  ECR I‑1039.
[xvii] Joined Cases C-158/04 and C-159/04 Alfa Vita  ECR I‑8135.
[xviii] Oliver & Enchelmaier. Free Movement of Goods: Recent Developments in the Case Law. (2007) 44 CMLRev. 649–704.
[xix] Joined Cases C-418/93, etc Semeraro Casa Uno  ECR I‑2975.
[xx] Case C‑110/05 Commission v Italy  ECR I‑519.
[xxi] Case C‑142/05 Mickelsson and Roos  ECR I‑4273.
[xxii] Spaventa. Leaving Keck behind? The free movement of goods after the rulings in Commission v. Italy and. Mickelsson and Roos. (2009) 34 ELRev. 914-932.
[xxiii] Snell, The Notion of Market Access: A Concept or a Slogan? (2010) 47 CMLRev, p. 437-472.
[xxiv] Wenneras & Boe Moen. Selling arrangements, Keeping Keck. (2010) 35 ELRev. 387 -400.
Firstly, the CJEU has 'consolidated' the so-called 'market access test' in the enforcement of Art 34 TFEU by recasting the traditional 'Dassonville' formula and focussing the assessment on hindrances to market access. Indeed, in the 'new' (re)formulation of the test, the CJEU considers that
In view of the Court’s settled case-law, the contested legislation constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 34 TFEU, in so far as its effect is to hinder access to the Polish [sic, Lithuanian (oh, the joys of copy and paste!)] market for vehicles with steering equipment on the right, which are lawfully constructed and registered in Member States other than the Republic of Lithuania (see, concerning the origins of that case-law, Case 8/74 Dassonville  ECR 837, paragraph 5; Case 120/78 Rewe Zentral, ‘Cassis de Dijon’  ECR 649, paragraph 14; and, more recently, Case C‑110/05 Commission v Italy  ECR I‑519, paragraph 58) (C-61/12 at para 57 emphasis added and, equally, C-639/11 at para 52, correction needed in the English version of the C-61/12 Judgment but not in other linguistic versions].
This may be seen as a relatively welcome development, as it continues in the line of clarification already initiated in C-110/05 Commission v Italy (mopeds) and consolidates a more encompassing test that allows for the harmonious assessment of potential restrictions to free movement of goods under a single, unified (and probably more functional) test.
In my view, the application of such a stringent proportionality test (with which the CJEU seems to revitalise the pro-integrationist agenda in the enforcement of Art 34 TFEU) will create frictions with Member States for two main reasons.
Firstly, the 'consolidation' of the new (re)formulation around hindrance of market access indicates an effective substitution of the underlying rationale in internal market rules (art 34 TFEU particularly) from a producers’ freedom (push market) to a consumers’ right (pull market). This will be problematic unless free movement rules further converge with (effective) consumer protection and safety and similar concerns receive a common treatment throughout the EU (ultimately, the goal of the CJEU, particularly when it uses the argument that in 22 of the 28 Member States registration would not have required changing the wheel location).
In the future, it will be interesting to see if the CJEU does not find itself under the same amount of criticism as when it first adopted the Dassonville fomula and, consequently, whether the next round of evolution of the law on free movement of goods does not initiate a new restriction of the rules under a new version of Cassis de Dijon. All in all, the development of the law in this area of the internal market seems to evolve in cycles.