## Facts

- Bernard Keck and Daniel Mithouard, retailers in France, were prosecuted for selling certain goods below their purchase price in violation of a French prohibition on “resale at a loss.”
- The defendants argued the ban restricted their ability to market imported goods because low-price strategies are often used by importers and new market entrants.
- The French trial court referred questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether the ban was compatible with Article 30 EEC (now Article 34 TFEU), which prohibits quantitative restrictions on imports and measures having equivalent effect.
- The cases were joined and decided via the preliminary reference procedure; the CJEU interpreted EU law for application in the national criminal proceedings.

## Issues

1. Whether a general prohibition on resale at a loss constitutes a “measure having equivalent effect to a quantitative restriction” prohibited by Article 30 EEC.
2. Whether Article 30 EEC applies to national rules that regulate “selling arrangements” rather than product characteristics.
3. What conditions must be met for a non-product rule governing marketing or sales methods to fall outside Article 30 EEC.

## Decision

- The CJEU held that the broad “measures having equivalent effect” formula remains valid as a general definition of Article 30 EEC restrictions.
- The Court distinguished between (a) rules imposing “product requirements” and (b) rules restricting or prohibiting “selling arrangements.”
- The Court held that national rules governing selling arrangements fall outside Article 30 EEC when they:
  - apply to all relevant traders operating within the national territory; and
  - affect the marketing of domestic and imported goods in the same manner, in law and in fact.
- Applying that test, the French prohibition on resale at a loss was treated as a non-discriminatory selling arrangement and therefore not a measure having equivalent effect under Article 30 EEC.

## Legal Principles

- A national rule that lays down requirements to be met by goods (e.g., designation, form, size, weight, composition, presentation, labeling, packaging) falls within Article 30 EEC even if it applies indistinctly, unless justified under recognized Treaty or public-interest grounds.
- A national rule that restricts or prohibits a selling arrangement is not within Article 30 EEC if it applies to all relevant traders and affects domestic and imported goods equally in law and in fact.
- The loss of a preferred marketing strategy, without a showing of unequal legal treatment or greater factual burden on imported goods, is insufficient to bring a non-discriminatory selling arrangement within Article 30 EEC.

## Conclusion

The CJEU narrowed the reach of Article 30 EEC by excluding certain non-discriminatory “selling arrangements” from its scope, holding that France’s ban on resale at a loss did not unlawfully restrict imports because it applied to all traders and did not disadvantage imported goods in law or in fact.


Criminal Proceedings Against Keck & Mithouard (Keck & Mithouard), Joined Cases C-267/91 & C-268/91 (C.J.E.U. 1993)