Introduction
The European Court of Justice (ECJ) judgment in Keck and Mithouard (Cases C-267 and 268/91) provides an important clarification regarding the scope of Article 34 of the Treaty on the Functioning of the European Union (TFEU), which prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States. This landmark ruling established a critical distinction between rules relating to product characteristics (product requirements) and those concerning selling arrangements. Product requirements, which mandate alterations to the goods themselves, are considered measures having equivalent effect to quantitative restrictions and are, therefore, prohibited under Article 34, unless justified by specific Treaty derogations. Conversely, selling arrangements, which govern how products are marketed and sold, fall outside the scope of Article 34, provided they apply equally in law and in fact to all affected traders operating within the national territory. This distinction is fundamental to understanding the free movement of goods within the EU internal market.
The Background of Keck and Mithouard
Prior to Keck, the ECJ's interpretation of Article 34 had broadened considerably, covering various national regulations that indirectly affected trade. Cases like Dassonville (Case 8/74) and Cassis de Dijon (Case 120/78) established principles that significantly impacted national regulatory autonomy. Dassonville defined measures having equivalent effect very broadly, while Cassis introduced the principle of mutual recognition, requiring Member States to accept goods lawfully marketed in other Member States, unless justified by mandatory requirements. This led to challenges against a wide array of national rules, even those not directly related to product characteristics. The Keck case, concerning French legislation prohibiting resale at a loss, offered the ECJ an opportunity to refine its approach.
Defining Selling Arrangements
The ECJ in Keck defined selling arrangements as rules relating to the marketing and selling of goods, such as advertising restrictions, opening hours, and, as in the case itself, resale price maintenance. Importantly, these rules do not require any alteration to the product itself. They affect the way products are sold, not the products' basic characteristics. This distinction was important in establishing a more limited scope for Article 34.
The Keck Proviso: Equal Application in Law and Fact
The ECJ stipulated that selling arrangements fall outside the scope of Article 34 only if they apply equally in law and in fact to all affected traders operating within the national territory and affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. This proviso aims to prevent Member States from using seemingly neutral selling arrangements to discriminate against imported products. The requirement for equal application ensures that such regulations do not create disguised barriers to trade.
Applying the Keck Test: Examples and Case Law
Subsequent case law has further refined the application of the Keck test. For instance, in Commission v Greece (Case C-391/92), concerning restrictions on baby milk sales, the ECJ considered the regulation a product requirement, as it dictated where the product could be sold, impacting the producer's ability to access specific market segments. Conversely, in Hünermund (Case C-292/92), restrictions on pharmacists advertising para-pharmaceutical products were deemed selling arrangements, as they did not require product modification and applied equally to all pharmacists. These examples illustrate the practical application of the Keck principles and the details involved in distinguishing between product requirements and selling arrangements.
The Significance and Limitations of Keck
Keck represents a significant development in the jurisprudence of the free movement of goods. It introduced a degree of legal certainty for Member States, allowing them to maintain certain national regulations without violating Article 34. However, the Keck test is not without its critics. The distinction between selling arrangements and product requirements can be complex in practice. Furthermore, the requirement for equal application in fact has proven challenging to assess, leading to ongoing debate and litigation. Some commentators argue that Keck has not entirely resolved the basic tensions between market unification and national regulatory autonomy. Nevertheless, Keck and Mithouard remains a key element of the EU's internal market law, providing a framework for analyzing national rules that impact cross-border trade.
Conclusion
The ECJ judgment in Keck and Mithouard offers a significant framework for understanding the scope of Article 34 TFEU. By distinguishing between product requirements, which fall within Article 34's purview, and selling arrangements, which generally do not, provided they satisfy the conditions of equal application, the ECJ clarified the boundaries of free movement of goods. This distinction is essential for balancing the competing interests of market unification and national regulatory autonomy. Subsequent case law has further refined the application of the Keck test, illustrating both its practical utility and the complexities present in its application. Despite ongoing debate surrounding the details of the Keck proviso, this landmark ruling remains a significant element of EU internal market law, providing an essential framework for analyzing national measures potentially affecting cross-border trade. The principles established in Keck continue to shape legal interpretations and influence the development of EU legislation concerning the free movement of goods, showing the lasting importance of this judgment.
