Joined cases C-267/91 and C-268/91, Criminal proceedings against Bernard Keck and Daniel Mithouard, ECR 1993 p. I-06097 http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61991J0267

 

Identified should be:

● The parties of the case

● The subject of the case

● The structure of Free Movement cases:

-Element of EU law

-Does the case fall under EU free movement law?

-Which free movement rights are restricted?

-Is the restriction distinctive or indistinctive / discriminatory or non-discriminatory?

-Is the restriction justified? (In this case, it is important that there exist two groups of justifications - treaty-based and case law based.)

-Is the restriction necessary in a democratic society?

-Is the restriction proportionate?

● What did the ECJ decide?

 

 

Please note:

In the Keck judgment, the CJEU tried to clarify the scope of Article 34 TFEU (28 EC).

By contrast, contrary to what has previously been decided, […] national provisions restricting or prohibiting certain selling arrangements are not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment […], so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. (para. 16) – Thus, since Keck, the application of national provisions restricting or prohibiting “certain selling arrangements’ to products from other Member States falls outside the scope of the prohibition laid down by Article 34 TFEU (28 EC), so long as those provisions”‘apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

National legislation imposing a general prohibition on resale at a loss is not designed to regulate trade in goods between Member States. (para. 12)

Such legislation may, admittedly, restrict the volume of sales, and hence the volume of sales of products from other Member States, in so far as it deprives traders of a method of sales promotion. But the question remains whether such a possibility is sufficient to characterize the legislation in question as a measure having equivalent effect to a quantitative restriction on imports. (para 13)

 

Imola Streho explains that by the Keck-judgment, the CJEU laid down a distinction. Consequently, certain rules which seem to fall into the category of selling arrangements are treated as rules relating to products (for example, advertising). Conversely, rules concerning the packaging of products which, following Keck, are prima facie included among the rules relating to products, have, after individual examination, been categorized as “selling arrangements”. In response to a question on the meaning and scope of the rules relating to the free movement of goods, the ECJ in Keck limited the scope of those rules to certain types of rules according to their subject-matter.

According to the Advocate General’s Poiares Maduro opinion in the Joined Cases C-158/04 and C-159/04, Alfa Vita Vassilopoulos AE, the approach developed in Keck has three major disadvantages:

31. Firstly, although the distinction set out in that judgment was adopted with a view to clarifying the nature of the prohibition laid down by the principle of free movement of goods, it has in fact proved to be a source of uncertainty for economic operators, the European Community institutions and Member States. In some cases, it is difficult to distinguish selling arrangements from national rules relating to the characteristics of products, for the very reason that the existence of a restriction on trade is dependent on the method of application of a rule and its concrete effects. (33) In other cases, it is impossible to include a measure within one or other of these categories because the variety of rules which may be called into question does not fit easily into such a restricted framework. (34)

32. Secondly, while this case-law aims to facilitate the application of the principle of free movement of goods, its application has appeared to be very complex. This complexity results, in particular, in a tendency on the part of the Court to refer back to the national court the responsibility of ascertaining the character and scope of the rule in question. (35) For a court which has asked for the Court’s assistance to resolve a case, such a responsibility may appear to be rather heavy to bear.

33. Thirdly, it has been apparent that the rule in Keck and Mithouard is not easily transposed into the fields of the other freedoms of movement. The Court has never in fact adopted the “selling arrangement” classification in its case-law relating to the other freedoms. In such cases, it merely generally regards as restrictions on freedom of movement ‘all measures which prohibit, impede or render less attractive the exercise of that freedom’. (36) This difference in approach raises a problem of consistency in the case-law. This problem appears to be even greater as many national measures examined by the Court from the perspective of the free movement of goods can also be treated as restrictions on the other freedoms of movement. (37)

34. It follows from the above that although Keck and Mithouard was intended to limit the number of actions and to restrain the excesses which resulted from the application of the principle of free movement of goods, in the end it increases the number of questions about the precise scope of the principle.

35. Yet is there cause to abandon this case-law? I do not think so. However, it is important to clarify it, in particular by reference to the case-law developed in the other fields of free movement.

In para. 14 of the Keck-judgment, the ECJ explained that Article 34 TFEU (28 EC) was not an adequate basis for the actions of traders wishing to ‘challenge any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States.

Advocate General Poiares Maduro continues in the Joined Cases C-158/04 and C-159/04, Alfa Vita Vassilopoulos AE:

b) Application of the Keck criteria to arrangements for use:

42. However, because the Dassonville formula is so broad, ultimately any national rules restricting the use of a product may be classified as a measure having equivalent effect and need to be justified.

43. The question therefore arises which the Court also raised – albeit in another connection – in its judgment in Keck, which is whether any measure which potentially also affects the volume of sales of products from other Member States can be characterised as a measure having equivalent effect. (19)

44. It becomes clear that this question regarding arrangements for use, that is to say national rules governing how and where products may be used, is particularly pressing when we consider a few examples.

45. For example, a prohibition on driving cross-country vehicles off-road in forests or speed limits on motorways would also constitute a measure having equivalent effect. In the case of these restrictions on use too, it could be argued that they possibly deter people from purchasing a cross-country vehicle or a particularly fast car because they could not use them as they wish and the restriction on use thus constitutes a potential hindrance for intra-Community trade.

46. With regard to the delimitation of the broad scope of Article 34 (28 EC) when the Dassonville formula is applied, the Court has attempted from time to time to exclude national measures whose effects on trade are too uncertain and too indirect from the scope of Article 34 (28 EC). (20) However, an argument against these criteria is that they are difficult to clarify and thus do not contribute to legal certainty.

47. Instead I suggest excluding arrangements for use in principle from the scope of Article 34 (28 EC), in the same way as selling arrangements, where the requirement set out by the Court in Keck and Mithouard is met.

48. In its judgment in Keck and Mithouard the Court found that there is an increasing tendency of traders to invoke Article 34 (28 EC) as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States. (21) In the context of arrangements for use, ultimately individuals may even invoke Article 34 (28 EC) as a means of challenging national rules whose effect is merely to limit their general freedom of action.

49. With regard to selling arrangements the Court ruled in Keck and Mithouard that the application to products from other Member States of such national provisions is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. (22) The ‘Keck exception’ does not cover product-related rules, which relate to the characteristics of products. (23) The judgment in Keck and Mithouard concerned the prohibition on selling goods below the purchase price. Following that judgment the Court has for example classified prohibitions on Sunday trading and the prohibition on anyone other than specially authorised retailers selling tobacco as provisions on selling arrangements. (24)

50. The consequence of this case-law is that national rules which satisfy the selling arrangement criterion do not fall within the scope of Article 28 EC with the result that they are permissible under Community law without the need for the Member State to justify them.

51. Against this background the present case now gives grounds to consider whether arrangements for use should not, by analogy with the Court’s ruling in Keck, be excluded from the scope of Article 34 (28 EC).

52. If we consider the characteristics of arrangements for use and selling arrangements, it is clear that they are comparable in terms of the nature and the intensity of their effects on trade in goods.

53. Selling arrangements apply in principle only after a product has been imported. Furthermore, they indirectly affect the marketing of a product through consumers, for example because they cannot buy the product on certain days of the week or advertising for a product is subject to restrictions. Arrangements for use also affect the marketing of a product only indirectly through their effects on the purchasing behaviour of consumers.

54. National legislation which governs selling arrangements is not normally designed to regulate trade in goods between Member States. (25) A national legislature does not in general seek to regulate trade between Member States with arrangements for use either.

55. Against this background, it therefore appears logical to extend the Court’s Keck case-law to arrangements for use and thus to exclude such arrangements from the scope of Article 34 (28 EC).

56. Consequently, a national provision restricting or prohibiting certain arrangements for use does not come under the prohibition laid down by Article 28 EC, so long as it is not product-related, so long as it applies to all relevant traders operating within the national territory and so long as it affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

…

65. In its judgment in Keck the Court held that national selling arrangements which satisfy the Keck criteria are not by nature such as to prevent their access to the market or to impede access any more than they impede the access of domestic products and therefore fall outside the scope of Article 34 (28 EC). (30)

66. It may be concluded from this finding that, conversely, a national measure restricting or prohibiting an arrangement for use is not excluded from the scope of Article 34 (28 EC) if it prevents access to the market for the product in question. (31)

67. In this respect it is not only rules which result in complete exclusion, such as a general prohibition on using a certain product, that are to be regarded as preventing access to the market. A situation where only a marginal possibility for using a product remains because of a particularly restrictive rule on use is to be regarded as preventing access to the market.

 

(For the notes, the following material has been used: Imola Streho, Free Movement of Goods: About Discrimination, Restrictions and Market Access. Advanced European Union Legal Practice. Reader - Teaching Material (Total Law CEU Sun, Department of Legal Studies, 2010))