Ioannis Tzouros

S2385031

I.tzouros@student.rug.nl

De Minimis Rule and 'Selling Arrangements' under Keck Surviving

Harmonization.

Essay for European Market Law Seminar, for Prof. Lawrence Gormley.

1. Introduction

Is Article 30 of the Treaty a provision intended to liberalize intra-Community trade or is it

intended more generally to encourage the unhindered pursuit of commerce in individual Member

States?1 Over sixty years after the objective of common market was defined in the Treaty of Rome,

this essential question on the scope and application of European Treaty freedoms enjoys still a

prominent place in the debate agenda. The above question lays at the core of two initially separate,

subsequently intertwined,2 yet highly contentious concepts related to the fundamental Treaty

freedoms, namely the admissibility and existence of a de minimis threshold to the freedom of

movement of goods and the other Treaty freedoms, as well as the meaning and application of

'selling arrangements' as mentioned initially in Keck case, which may conditionally escape the

prohibition on measures having equivalent effect to quantitative restrictions. The two concepts have

aroused considerable controversy and have been the subject of intense academic debate since the

early days of their conception. Notwithstanding that legal orthodoxy appears currently to have

settled those issues, revisionist attempts to force a new definition of the concept appear ever

present.3

The aim of the present paper is two- fold. The first part will address the question whether a de

minimis rule on the freedom of movement of goods is admissible and beneficial for the promotion

of the internal market, under the light of relevant case law and various academic opinions.

Subsequently, the second part will elaborate on the background and the meaning of the concept of

'selling arrangements' under Keck, and will finally address the issue whether the rationale of this

decision survives, especially after the three 'use of goods' cases. The essay is based on the

hypothesis that the Treaty freedoms are converging, at least as far as their most substantial premises

are concerned, therefore, notwithstanding that emphasis is given on the freedom of movement of

goods, case law examples from other freedoms will be used interchangeably to establish the

arguments presented herein.

2. De Minimis Rule and the Fundamental Freedoms.

The term de minimis is an abbreviated form of the Latin expression 'de minimis non curat lex'. Its

literal translation is that 'the law does not care for trifles', consequently only meaningful for the

community issues can be regulated by law. Additionally, its procedural corollary is that the courts

will dismiss any petty dispute, anything appearing of minor importance concerning the issues under

consideration. In the area of the fundamental Treaty freedoms and especially the freedom of

1. Case C-292/92 Ruth Hünermund and others v Landesapothekerkammer Baden-Württemberg [1993] ECR I-6800,Opinion of AG Tesauro, para. 1.2. In C-412/93 Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA [1995] ECR I-209, Opinion of AG Jacobs, para 45.3. Gormley Lawrence, 'Inconsistencies and Misconceptions in the Free Movement of Goods' (2015), (forthcoming).

movement of goods, notwithstanding the lengthy and heated debates on the subject, no concrete and

specific proposal on the exact definition and application of such a rule exists. Roughly, the term

refers to a quantified threshold, beyond which national measures will not fall under the prohibition

on measures having equivalent effect to custom duties or quantitative restrictions on imports and

exports as defined in arts. 30, 34 and 35 TFEU.

The completion of the internal market could not have been achieved without the abolition of

customs duties, quantitative restrictions on imports and exports as well as measures having

equivalent effect to the previous (henceforth MEQs).4 As means to this end, the Court formulated

very wide, all encompassing definitions of the prohibited national measures. Specifically, in

Statistical Levy case MEQs to custom duties were defined as:

Any pecuniary charge, however small and whatever its designation and mode of application, whichis imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier,and which is not a customs duty in the strict sense, constitutes a charge having equivalent effectwithin the meaning of Articles 9, 12, 13 and 16 of the Treaty, even if it is not imposed for thebenefit of the State, is not discriminatory or protective in effect and if the product on which thecharge is imposed is not in competition with any domestic product.5

Subsequently, in paragraph 14 of the same judgement, the Court clarified that the classification of

the measure in question was not subject to quantitative criteria and the very low rate of the charge

cannot change is character with regard to the Treaty freedoms, rejecting therefore the existence of a

de minimis rule in art.30 TFEU.6

Similarly broad was the Court's definition of the prohibited under art.34 TFEU measures having

equivalent effect to quantitative restrictions on imports as expressed in the famous Dassonville case

whereby:

All trading rules enacted by Member States which are capable of hindering, directly or indirectly,actually or potentially, intra-Community trade are to be considered as measures having an effectequivalent to quantitative restrictions.7

It appears as necessary derivative of the broad definition in Dassonville, that any quantified

threshold would be incompatible to the wording and purpose of the rule. Following that line of

reasoning, the Court rejected explicitly the existence of a de minimis rule as early as in 1984 in the

Van de Haar judgement.8 Specifically, elaborating on the scope of what is now art.34 TFEU and the

distinction from provisions on competition, the Court said:

A court called upon to consider whether national legislation is compatible with Article 30 of theTreaty must decide whether the measure in question is capable of hindering, directly or indirectly,

4. Barnard Catherine, The Substantive Law of the EU: The Four Freedoms (4th edn,Oxford University Press,2013), 44.5. Case 24/68 Commission v Italy [1969] ECR 193, para 9, emphasis added.6. Ibid para 14.7. Case 8/74 Procureur du Roi and Benoit and Gustave Dassonville [1974] ECR 837, para 5.8. The Court of Justice has opposed the admissibility of de minimis threshold in numerous occasions. For the purposes of this essay the most indicative passages from cases are presented, as well as one case related to each Treaty freedom.

actually or potentially, intra-Community trade. That may be the case even though the hindrance isslight and even though it is possible for imported products to be marketed in other way.9

The same conclusions were repeated verbatim in the Commission v France case of 1985.10

Furthermore, the ruling in Yves Rocher clarifies that the magnitude of certain national measures on

intra- Community trade is not relevant regarding their classification as MEQs to quantitative

restrictions, rejecting therefore once more any arguments for the existence of a threshold to art.34.11

Moreover, the decision in Bluhme indicated that regardless that the restriction applied only to a very

small proportion of the Danish territory, it was yet capable of having direct and immediate impacts

on trade, constituting therefore a MEQ to quantitative restriction.12 Accordingly, as an explicit

rejection of the territorial de minimis threshold, notwithstanding that the measure applies only to

one municipality of the national territory it may still be in breach of art.34 TFEU.13

The same conclusions are valid concerning the other Treaty freedoms where the existence of de

minimis rule was never accepted by the Court. In the area of freedom of to provide services and

establishment, the alignment to the Dassonville formula is clearly indicated in Sager case:

It should first be pointed out that Article 59 of the Treaty requires not only the elimination of alldiscrimination against a person providing services on the ground of his nationality but also theabolition of any restriction, even if it applies without distinction to national providers of servicesand to those of other Member States, when it is liable to prohibit or otherwise impede the activitiesof a provider of services established in another Member State where he lawfully provides similarservices. 14

Likewise, case Volker Graf and Commission v UK from the areas of freedom of movement of

workers and freedom of movement of capital accordingly, clearly indicate the explicit rejection of

de minimis threshold in these two areas.15

Additionally, the Court's rulings are reinforced by the 2010 European Commission Guidelines on

the free movement of products, where in relation to the scope of the prohibition in art.34 TFEU, is

clearly stated that according to long established case law there is no de minimis principle in relation

to the articles concerning the free movement of goods.16

2.1. The Academic Debate Concerning the De Minimis Principle.

9. Joined Cases C-177&178/82 Jan Van De Haar and Kaveka de Meern B.V [1984] ECR 1797, para 14.10. Case C-269/83 Commission v France [1985] ECR 837, para 10.11. Case C-126/91 Schutzverband gegen Unwesen in der Wirtschaft e.V. v Yves Rocher GmbH [1993] ECR I-02361, para 21.12. Case C-67/97 Criminal Proceedings against Ditlev Bluhme [1998] ECR I-8033, para 22.13. Joined Cases C-277, 318 and 319/91 Ligur Carni Srl and Genova Carni Srl v Unità Sanitaria Locale [1993] ECR I-6621, para37.14. Case C-76/90 Manfred Säger v Dennemeyer & Co. Ltd. [1991] ECR I-4221, para 12.15. Case C-190/98 Volker Graf v Filzmoser Maschinenbau GmbH. [2000] ECR I-493, para 23 and C-98/01 Commission v the United Kingdom [2003] ECR I- 04641, para 36.16. European Commission, 'Free Movement of Goods: Guide to the Application of Treaty Provisions Concerning the Free Movement of Goods' COM(2010) final.

The overwhelming plethora of Court's decisions indicating the undeniable rejection of the

principle, as well as the Commission's Guidelines could have terminated the debate concerning the

de minimis rule at a very early stage. However, voices upholding the existence and/or the

admissibility of the principle in the ambit of EU law appear ever-present especially after the

conclusion of the three 'use cases'. This paper will attempt to address the most prominent amongst

the arguments endorsing the existence in case law and the admissibility of a de minimis threshold.

A widely shared opinion upholds that in the present degree of market integration it will be both

necessary and desirable to exclude from art.34 TFEU prohibition national measures with minor

effects on trade.17 Excluding certain insignificant effects from the scope of art.34 will significantly

relieve the European Courts from the burden of petty cases, allowing therefore a more effective

control and regulation of measures having considerable impact on trade.18 In defence of this

opinion, Hojnik proceeds arguing that a de minimis rule on the common market would lead to a

decentralised and effective marker regulation, increasing therefore the legitimacy of such regulation

in accordance to the principle of subsidiarity.19 Provided that the substantive market rules are in fact

concealed institutional criteria for the division of powers between the EU institutions and MS,

limiting the competences of central regulator would establish a sensible and mature regulatory

framework, relieving therefore MS from what she calls 'the costs of liberalisation'.20 Additionally,

AG Jacob's opinion in Leclerc- Siplec seems supportive of that line of reasoning, advocating the

exclusion of Keck selling arrangements from the prohibition of art.34 for having insubstantial

effects on trade, allowing consequently the national legislator the discretion to maintain 'certain

selling arrangements' as deemed fit.21 As far as the procedural or operational aspect of this opinion

is concerned, the considerable lack of information does not further elucidate the general picture.

Hojnik suggests that the threshold should be defined in analogy to competition law and Regulation

1407/2013 or, quoting Perisin, by a direct reference to formulas such the one introduced in Keck.22

Krenn departs slightly from the former opinion, arguing that the threshold should not be the same as

in competition law or state aid, due to the different addressees of these norms.23

However, the above arguments merely blur rather that clarify the main hypothesis. It was very

17. In Hojnik Janja,'De Minimis Rule Within the Internal Market: Towards a More Mature and Legitimate Market?' (2013) 6 European Journal of Legal Studies 25, 40 and in Krenn Cristoph, 'A Missing Piece In the Horizontal Effect ''Jigsaw'': Horizontal Direct Effect and the Free Movement of Goods' (2012) 49 Common Market Law Review 177, 211.18. Krenn Cristoph, 'A Missing Piece In the Horizontal Effect ''Jigsaw'': Horizontal Direct Effect and the Free Movement of Goods' (2012) 49 Common Market Law Review 177, 211.19. Hojnik Janja,'De Minimis Rule Within the Internal Market: Towards a More Mature and Legitimate Market?' (2013) 6 European Journal of Legal Studies 25, 41.20. Ibid.21. Case C-412/93 Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA [1995] ECR I-209, Opinion of AG Jacobs, paras 45 to 49.22. Tamara Perišin, Free Movement of Goods and Limits of Regulatory Autonomy in the EU and WTO (T.M.C. Asser Press 2008), 3.23. Krenn Cristoph, 'A Missing Piece In the Horizontal Effect ''Jigsaw'': Horizontal Direct Effect and the Free Movement of Goods' (2012) 49 Common Market Law Review 177, 212.

convincingly argued that the application of such rule or proving the degree of hypothetical effects

on trade would be impossible and unworkable, or quoting AG Tesauro, a probatio diabolica.24 All of

the above proposals fail to provide a convincing answer on the most essential question concerning

where the limit should be set. Various criteria have been proposed inter alia a percentage of GDP, a

percentage of the national market (and what would be the relevant market); the value of a day’s

imports, or the amount of the daily penalty for non-compliance with an ECJ judgement, however

none of the above has been ever accepted as a convincing foundation of a de minimis rule.25

Moreover, any analogy drawn from the areas of competition law or state aid law appears ill-

founded. Competition law and the Treaty freedoms are not concepts which can be referred to

interchangeably for they have different subject- matter and consequently different addressees.26

Therefore, any attempt to draw analogies from competition law to the fundamental freedoms would

be as absurd as imposing any de minimis rule to i.e. habeas corpus proceedings.27 Consequently, in

the absence of clear- cut rules and precise criteria of the figurative de minimis threshold, such kind

of decentralization can only increase legal uncertainty, leading national courts to arbitrarily exclude

a major number of national measures from the prohibition of art.34 TFEU rectifying in this manner

the situation prior to the acceptance of the Dassonville formula. Therefore, the re- introduction of

restrictions to trade cannot be indicative of a 'mature' market, contrary to the arguments projecting

the ideal of a harmoniously functioning internal market to the means of its attainment.

2.2 The Situation After 2009.

Two Court's decisions in cases concerning the 'use of products' both delivered in 2009 revitalised

the debate concerning the existence of de minimis threshold.28 The Court's reference to a measure's

'considerable' influence on the behaviour of consumers, which in its turn, affects the access of that

product to the market of that Member State' was perceived as formally introducing a de minimis

rule in relation to the effects the national measure has on market access.29 Jansson and Kalimo have

argued that the 'use cases' represent a deliberate effort of the Court to depart from previous

judgements by limiting the very wide Dassonville rule and following up the Keck decision.30

24. C-292/92 Ruth Hünermund and others v Landesapothekerkammer Baden-Württemberg [1993] ECR I-6800, Opinionof AG Tesauro, para 22.25. Gormley Lawrence, 'The Definition of Measures Having Equivalent Effect' in Arnull, Eeckhout and Tridimas(eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford University Press,2008), 202.26. Gormley Lawrence, 'Competition and Free Movement: Is the Internal Market the Same as the Common Market?' (2002) 6 European Business Law Review 517, 521.27. Oliver Peter, 'Some Further Reflections on the scope of articles 28-30' (1999) 86 Common Market Law Review 783,791.28. Referring to Case C-110/05 Commission v Italy [2009] ECR I -519 and Case C-142/05 Aklagaren v Percy Michelsson and Joakim Roos [2009] ECR I-4273. 29. Case C-110/05 Commission v Italy [2009] ECR I -519, para56.30. Jansson Max and Kalimo Harry, 'De Minimis Meets ''Market Access'': Transformation in the Substance -and the Syntax -of EU Free Movement Law?' (2014) 51 Common Market Law Review 523, 524.

Subsequently, they attempted a classification of what was considered as varying notions of a de

minimis rule by the Court in order to define where the relevant threshold should be placed.

Consequently, there seem to be three substantive groups of de minimis thresholds, namely the

classic threshold of the magnitude (severity) of the restrictive effect, the probability and the

causality between the measure and the restrictive effect. The introduction of such threshold could be

expressed as well in abstract terms.31 Assessing the magnitude, or the degree of severity that a

measure might have on the market access, the authors argue that the 'remoteness' test can indeed be

a de minimis rule.32 In the same line of reasoning, Hojnik distinguishes between a de minimis rule in

terms of quantity which is explicitly rejected by the Court in the Van De Haar judgement, and a

similar rule in terms of quality or intensity of the measure's effect.33Subsequently, she refers to

Viacom II decision from the services area to establish a de minimis threshold in relation to market

access, whereby:

[A] tax is fixed at a level which may be considered modest in relation to the value of the servicesprovided which are subject to it and that the levying of such a tax is not on any view liable toprohibit, impede or otherwise make less attractive the provision of advertising services to be carriedout in the territory of the municipalities concerned.34

There is indeed a series of cases where the Court decided that certain measures are not captured in

art.34 TFEU prohibition for the reason that their effects on trade are 'too remote or uncertain'.35

However, the equation of the 'remoteness test' with a de minimis threshold is not accurate.36 A

measure may constitute an actual and direct restriction on imports even if applied on a very small

proportion of imports or a very limited geographical area.37 Equally, it is inherent in the Dassonville

formula that some measures do not constitute even potential or indirect hindrances to imports and

thus fall outside the this formula altogether.38 Therefore, 'too remote or hypothetical' effects and a

quantifiable threshold of import restrictions are distinct concepts and should not be approached

indistinctly. This conclusion is supported by AG Tesauro's opinion in Hunermund where he

confirmed that with the exemption of measures having purely hypothetical effect on intra-

31. Jansson Max and Kalimo Harry, 'De Minimis Meets ''Market Access'': Transformation in the Substance -and the Syntax -of EU Free Movement Law?' (2014) 51 Common Market Law Review 523, 527.32. Ibid, 530.33. Hojnik Janja,'De Minimis Rule Within the Internal Market: Towards a More Mature and Legitimate Market?' (2013)6 European Journal of Legal Studies 25, 36.34. Case C-134/03 Viacom Outdoor Srl v Giotto Immobilier SARL [2005] ECR I-116, para 38, emphasis added.35. Referring to Case C-379/92 Criminal Proceedings against Matteo Peralta [1994] ECR I-03453, para 24, Case C-266/96 Corsica Ferries France SA v Gruppo Antichi Ormeggiatori del porto di Genova Coop. arl, Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl and Ministero dei Trasporti e della Navigazione[1998] ECR I-03949, para 31, Case C-93/92 CMC Motorradcenter GmbH v Pelin Baskiciogullar [1993] ECR I-05009, para 12 and Case C-96/94 Centro servizi spediporto v spedizioni marittima [1995] ECR I-2883, para 41.36. European Commission, 'Free Movement of Goods: Guide to the Application of Treaty Provisions Concerning the Free Movement of Goods' COM(2010) final, 11.37. Oliver Peter, 'Some Further Reflections on the scope of articles 28-30' (1999) 86 Common Market Law Review 783,789.38. Oliver Peter, 'Of Trailers and Jet Skis: Is the Case Law on Article 34 TFEU Hurtling in a New Direction?' (2011) 33 Fordham International Law Journal 1423, 1430.

Community trade, it is established that art.34 draws no distinction according to the degree of their

effects to that trade, between measures which can be classified as measures having equivalent effect

to quantitative restrictions.39

2.3 Conclusions All things considered, this chapter has addressed the issue of the existence and admissibility of a

de minimis threshold on the four fundamental Treaty freedoms, with emphasis on the freedom of

movement of goods. Based on relevant Court's decision as well as academic literature can be safely

established that a quantified threshold beyond which national measures restricting imports or

exports escape art.34 TFEU prohibition cannot be accepted. Establishing this rule is both infeasible

as well as unworkable. Notwithstanding the existence of such rule in other legal fields such as

competition or state aid law, given the absence of any credible proposal concerning the application

of a de minimis rule as well as the threshold whereupon it should be based, such limitation would

only be a courting disaster concerning legal uncertainty.40 Moreover, entrusting the MS with the

competence to decide and apply rules contrary to the fundamental freedoms will only rectify the

situation prior to the establishment of the internal market, opening therefore the back door to

protectionism and distortion of intra- Community trade. Consequently, the de minimis rule comes

on sharp contrast with the very wide Dassonville formula stipulating that any restriction on imports

and exports should be prohibited. The contrary scenario in conditions of increased legal uncertainty

would only provide a carte blanche to MS to evade their obligations, jeopardising therefore the

entire common market edifice.41

3. Certain 'Selling Arrangements' Surviving Harmonization.

Quoting Norbert Reich, November 1993 saw a series of particularly important and controversial

decisions by the Court of Justice of the European Community which, due to their importance, were

deliberated in plenary sessions in which most of the Court's 13 judges participated. The cases

concern fundamental principles of methodology, the autonomy of Community law versus Member

States prerogatives as well as the shaping or rejection of a "European Economic Constitution" and

finally, the protection of diffuse interests of consumers in increased competition on the "market for

different legal order".42 Another highly contentious issue related to the scope and purpose of what is

now art.34 TFEU and consequently to the limits or the absence thereof of the MS regulatory powers

and the intrusive powers of EU Law, is the concept of 'selling arrangements' as introduced in Keck

39. Case C-292/92 Ruth Hünermund and others v Landesapothekerkammer Baden-Württemberg [1993] ECR I-6800, Opinion of AG Tesauro, para 21.40. Oliver Peter, 'Some Further Reflections on the scope of articles 28-30' (1999) 86 Common Market Law Review 783,806.41. Gormley Lawrence, 'Inconsistencies and Misconceptions in the Free Movement of Goods' (2015), (forthcoming).42. Reich Norbert, 'The ''November Revolution'' of the European Court of Justice: Keck, Meng and Audi Revisited' (1994) 31 Common Market Law Review 459.

case,43 which provided that they fulfil two cumulative conditions, escape from the prohibition of

art.34 TFEU and the wide Dassonville definition of MEQ to quantitative restrictions. More than

twenty years after the case was decided, Keck is among the mostly quoted case names, continuing to

raise considerable controversy and heated debates concerning the exact definition and applicability

of the concepts it introduced even to this day. However, the ruling in Keck cannot be understood in

isolation from previous and subsequent judgements. The aim of the second part of this paper is to

address the issues raised in the above-mentioned case by referring to the factual and legal context

which gave birth to Keck, and subsequently address the question whether this judgement remains

still valid law, especially after the Court's decision in the three cases concerning restrictions on the

'use of products'.

3.1 The Situation Before Keck.

Art.34 TFEU prohibits explicitly quantitative restrictions on imports among MS, as well as

measures having equivalent to quantitative restrictions effect. The concept of quantitative

restrictions on imports it is very narrow and raises no particular difficulties in its interpretation and

application for covering only measures which result in total or partial restrictions to the volume of

imports.44 The interpretation of what constitutes MEQ to quantitative restrictions and in final

analysis the related question concerning the outer boundaries of art.34 TFEU have aroused

considerable controversy, especially when considering the outcome and possible implications of

decisions such as the Carpenter case.45 The judgement in Dassonville was the first attempt to clarify

the scope of art.34 and its remarkable element is the breadth of its scope, for encompassing all

measures enacted by MS, liable of hindering directly or indirectly, actually or potentially intra-

Community trade.46 The effects of this ruling can be very clearly seen in another remarkable ruling

in the Foie Gras case, whereby:

Article 30 applies therefore not only to the actual effects but also to the potential effects oflegislation. It cannot be considered inapplicable simply because at the present time there are noactual cases with a connection to another Member State.47

As a consequence of the Dassonville ruling, the Court was overwhelmed by cases whereby traders

attempted to challenge any national measure which might impede their activities. Consequently,

43. Joined Cases C-267&268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard [1993] ECRI-6097, para 16.44. Oliver Peter, 'Of Trailers and Jet Skis: Is the Case Law on Article 34 TFEU Hurtling in a New Direction?' (2011) 33Fordham International Law Journal 1423, 1425.45. Case C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279, para 46. Notwithstanding that the case is related to the freedom of movement of persons and the freedom to provide services it can be indicative of how intrusive to the national legal systems and decisions EU Law can be when interpreted under the light of very wide, all encompassing concepts.46. Case 8/74 Procureur du Roi and Benoit and Gustave Dassonville [1974] ECR 837, para 5, emphasis added.47. Case C-184/96 Commission v. France (Foie Gras) [1998] E.C.R. I-6197, para 17.

art.34 was becoming the legal basis to challenge sensitive socio- economic arrangements which lay

at the core of state regulation of economic and social life.48 Moreover, a particularly contentious

issue was the question whether 'market circumstances' could fit within the framework established by

arts.34 and 36 TFEU combined with the interpretation provided in the Dassonville ruling.

Mortelmans defines 'market circumstances' as rules concerning by whom, when, where and how a

product is sold.49 Those rules are not to be assimilated to MEQs to quantitative restrictions for the

reason that they do not have a protectionist to the domestic products effect, they affect, in fact and

in law, the domestic producer in an equal manner as the foreign and lastly, these measures generally

affect the retailer and not the producers.50

Indicative of the different approaches towards 'market circumstances' rules is a series of

judgements which preceded Keck, where the Court decided that either those rules are MEQs

nevertheless justified on the basis of legitimate socio- economic concerns, or they fall outside the

scope of art.34 TFEU altogether.

The Torfaen case presents particular interest for the topic under consideration, where the Court

stated that rules regulating the closing of shops on Sundays were caught by the concept of MEQs,

but were justified as legitimate socio-economic policy choices.51 However, pursuant to art.3 of

Directive 70/50/EEC such measures should be equally applicable to domestic and imported

products and should be examined whether their restrictive effect on the free movement of goods

exceeds the effects intrinsic to trade rules.52 Subsequently, it was left for the domestic court to

determine whether the effects of those measures do remain within the specified limits.53

Consequently, domestic courts perceived the legality of similar measures in different ways.

Specifically, in Oosthoek case the Court ruled that:

Legislation which restricts or prohibits certain forms of advertising and certain means of salespromotion may, although it does not directly affect imports, be such as to restrict their volumebecause it affects marketing opportunities for the imported products. The possibility cannot be ruledout that to compel a producer either to adopt advertising or sales promotion schemes which differfrom one Member State to another or to discontinue a scheme which he considers to be particularlyeffective may constitute an obstacle to imports even if the legislation in question applies todomestic products and imported products without distinction.54

However, in the above- mentioned case the restrictive measure could be justified for reasons of

48. Gormley Lawrence,'Two Years After Keck' (1995) 19 Fordham International Law Journal 866, 872.49. Barnard Catherine, The Substantive Law of the EU: The Four Freedoms (4th edn, Oxford University Press, 2013), 119.50. Ibid, 120.51. Case C-145/88 Torfaen Borough Council v B&Q plc [1989]ECR I-3581,para 13.52. Commission Directive 70/50/EEC of 22 December 1969 based on the provisions of Article 33 (7), on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty (1970) OJ L 13/29.53. Case C-145/88 Torfaen Borough Council v B&Q plc [1989] ECR I-3581, para 16.54. Case C-286/81 Criminal proceedings against Oosthoek's Uitgeversmaatschappij BV [1982] ECR I-4575, para 15, emphasis added.

consumer protection.55 The outcome of the Buet case was similar, whereby:

In those circumstances the answer to the question submitted by the national court must be that theapplication to imported products of a prohibition on canvassing in relation to the sale of educationalmaterial, such as that laid down by the law on the protection of consumers with respect tocanvassing and to selling at private dwellings, is not incompatible with Article 30 of the Treaty.56

Similarly, in two judgements concerning the opening of stores on Sundays and the prohibition of

working for employees, the Court decided that the national measure does constitute restriction to

trade, nevertheless justified by legitimate social and political considerations. Thus, in Conforama

case the Court reserved similar rules for the MS jurisdiction:

That being so, it must first be stated that legislation such as the legislation at issue pursues an aimwhich is justified with regard to Community law. The Court has already held [...] that national rulesgoverning the opening hours of retail premises reflect certain political and economic choices in sofar as their purpose is to ensure that working and non-working hours are so arranged as to accordwith national or regional socio-cultural characteristics, and that, in the present state of Communitylaw, is a matter for the Member States.57

Furthermore, the Court was driven by similar considerations in Marchandise case, repeating the

above conclusions verbatim.58

On the contrary, in Oebel case concerning national rules controlling the times for the transport and

delivery of ordinary and fine baker's wares, in connection with the control of the hours when those

products may be manufactured, as well as in Blesgen case concerning the prohibition of sale or the

offering for consumption of spirits in public places, the Court ruled that those measures do not fall

under the scope of art.34 TFEU.59

A line of reasoning which can be perceived as a common approach of the Court to most of the

above-mentioned cases is that notwithstanding that a domestic measure does not discriminate

openly against imported products, the mere fact that it compels the foreign undertaking to adapt to

different, nationally arranged 'market circumstances', was sufficient to bring it under the ambit of

art.34 TFEU.60 However, the Court was not always consistent in this approach.

3.2 The Decision in Keck and its implications.

In 1991 criminal proceedings were initiated against two supermarket managers, Mr. Keck and

Mithouard, for selling certain brands of coffee and beer on a price lower than the actual purchase

55. Ibid, para 20.56. Case C-382/87 R. Buet and Educational Business Services (EBS) v Ministère public [1987] ECR I- 1235, para 17.57. Case C-312/89 Union départementale des syndicats CGT de l'Aisne and SIDEF-Conforama, Société Arts et Meubles, Société JIMA [1991] ECR I-1021,para 11.58. Case C-332/89 Criminal proceedings against André Marchandise, Jean-Marie Chapuis, and SA Trafìtex, [1991] ECR I-1038, paras 9 to 14.59. In Case C-155/80 Criminal Proceedings Against Sergius Oebel [1981] ECR I-1993,para 20 and Case C-75/81 Blesgen v Belgian State [1982] ECR I- 1211, para 8.60. Gormley Lawrence,'Two Years After Keck' (1995) 19 Fordham International Law Journal 866, 876.

price, a practice widely known as 'selling at a loss' which was prohibited under French Law, art. 32

of Order No 86-1243 of 1 December 1986.61 In their defence Mr Keck and Mr Mithouard contended

that a general prohibition on resale at a loss, is incompatible with Article 34 of the Treaty and with

the principles of the free movement of persons, services, capital and free competition within the

Community, for distorting competition and placing them in a considerable disadvantage vis-a-vis to

comparable undertakings in other MS where such a practice was not prohibited.62

Initially, the Court observes that the national measure in question is applied indiscriminately with

regards selling activities conducted in the French territory.63 In the following paragraph, the Court

repeats the Dassonville formula, which in this case as well constituted coherent indication of what

can be defined as MEQs to quantitative restrictions. However, it is well established that the

Dassonville definition is an effect based doctrine, whereby national measures can be classified as

MEQs if they have a restrictive effect on intra- Community trade, regardless of the intention of the

legislator.64 Therefore, the statement in paragraph 12 concerning the purpose of the national

legislation is puzzling.65 Subsequently, with a view on ending the situation whereby traders relied

on art.34 TFEU 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, the Court

considered it necessary to redefine the case law on this issue. The Court then proceeded in

distinguishing 'product requirements' to be met by goods, such as those relating to designation,

form, size, weight, composition, presentation, labelling, packaging which fall under art.34

prohibition even if they apply without distinction to all products66 from certain 'selling

arrangements'. As far as the latter category is concerned:

[C]ontrary to what has previously been decided, the application to products from other MemberStates of national provisions restricting or prohibiting certain selling arrangements is not such as tohinder directly or indirectly, actually or potentially, trade between Member States within themeaning of the Dassonville judgement, so long as those provisions apply to all relevant tradersoperating within the national territory and so long as they affect in the same manner, in law and infact, the marketing of domestic products and of those from other Member State.67

Provided that the two conditions of paragraph 16 are met, these 'selling arrangements' are not

caught by the prohibition of art.34 because they are not by nature such as to prevent their access to

61. Joined Cases C-267&268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard [1993] ECRI-6097, para 2.62. Joined Cases C-267&268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard [1993] ECRI-6097, paras 3 and 7. 63. Ibid, para 8.64. The very same conclusion was reiterated in various cases, i.e. Case C-322/01 Deutscher Apothekersverbund eV v 0800 Doc Morris NV et al [2003] ECR I-14887, para. 67.65. Joined Cases C-267&268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard [1993] ECRI-6097, para 12.66. Ibid, para 15.67. Ibid, para 16.

the market or to impede access any more than it impedes the access of domestic products. 68

It was argued that in the Keck case, the Court attempted to formulate workable criteria for the

interpretation of art.34 TFEU in a manner respecting the regulatory powers of MS on their

economy. By developing specific categories based on factual observations and their derivative legal

presumptions, the Court attempted to limit the instances in which it would be required to balance

the effect of a measure on the volume of trade, against various public policy considerations pursued

by the MS.69 However, this attempt has been proven controversial and has raised a number of

questions concerning the categorisation it introduced, which the judgement itself failed to answer in

a satisfactory manner.

Initially, in paragraph 14 of the judgement, the Court declares its intention to clarify the existing

case law on the subject, in view of the increasing tendency of traders to invoke what is now art.34

TFEU. Subsequently, paragraph 16, states inter alia that contrary to what has been previously

decided, certain 'selling arrangements' may conditionally be of such nature as not to impede trade

among MS.70 However, the ruling itself does not explicitly mention which prior cases have been

overruled, increasing therefore the legal uncertainty concerning the implications of such statement.71

Moreover, the use of the word 'certain' implies a distinction among 'selling arrangements' capable of

hindering trade among MS and others, like the ones referred to in this ruling, which do not impede

trade and thus, do not fall under the prohibition of MEQs. It is yet unclear which arrangements are

capable of hindering trade and which not, triggering actually the more essential question concerning

the exact meaning of the term 'selling arrangements' introduced by the present ruling.

The Court did not attempt to define the concept of 'selling arrangements' in the Keck case itself.

Subsequent case law may provide some indication on which categories of measures are included in

this concept. Specifically, national rules related to opening days and times of certain stores were

considered 'selling arrangements'.72 The same applies for national rules restricting where or by

whom products can be sold,73 as well as restrictions on product prices74 and advertising

restrictions.75 However, the above categories are not exhaustive and the Court has found in

68. Ibid, para 17, emphasis added.69. Lianos Ioannis,'In Memoriam Keck: The Reformation of the EU Law on the Free Movement of Goods' (2014) 5 Centre for Law Economics and Society Research Paper Series, 4.70. Joined Cases C-267&268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard [1993] ECRI-6097, paras 14 and 16, emphasis added.71. Barnard Catherine, The Substantive Law of the EU: The Four Freedoms (4th edn,Oxford University Press,2013),128.72. Joined Cases C-401&401/92 Criminal Proceedings Against Tankstation 't Heukske vof and J. B. E. Boermans [1994] ECR I-2227, para 13 and in Joined Cases C-418/93, C-419/93, C-420/93, C-421/93, C-460/93, C-461/93, C-462/93, C-464/93, C-9/94, C-10/94, C-11/94, C-14/94, C-15/94, C-23/94, C-24/94 and C-332/94 Semeraro Casa Uno Srl et al [1996] ECR I-2975, para 28.73. In Case C-254/98 Schutzverband gegen unlauteren Wettbewerb v TK-Heimdienst Sass GmbH. [2000] ECR I-151, para 24, Case C-322/01 Deutscher Apothekerverband eV v 0800 DocMorris NV and Jacques Waterval [2003] ECR I -14951.74. Case C-531/07 Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH [2009] ECR I- 3717, para 20.75. Case C-405/98 Konsumentombudsmannen v. Gourmet Int’l Products AB [2001] E.C.R. I-1795, para 22.

numerous different occasions that certain national rules constitute 'selling arrangements' and

therefore do not fall under the scope of art.34 TFEU. Paragraphs 15 and 16 of Keck, introduce a

conceptual division between national measures which relate to the integrity of the product, or

henceforth 'product bound' as referred to in paragraph 15 and certain 'selling arrangements'. For the

former category, which is not an exclusive list the Cassis de Dijon approach is still applicable.76

Provided that the latter category appears sui generis, given the uncertainty on which national rules

can be included therein, the application of either concept to an existing national measure can be

arbitrary. Peter Oliver argues that when any doubt exists as to whether a measure is 'product bound'

or relates to a selling arrangement, the Court tends to incline towards the former.77 However, since

one cannot deduce a general principle from this assumption, the classification of national measures

under Keck must not and can not be rigid and absolute. Initially, there are categories of national

measures which are not 'product- bound' nor 'selling arrangements', for example discriminatory

rules on sales or rules preventing or restricting activities or the use of goods. So there is no uniform

approach towards measures which do not manifestly fall under one of those two categories.

Furthermore, even when 'selling arrangements' are addressed, they can only be exempted from the

ambit of art.34 TFEU if they fulfil two cumulative conditions, namely to apply to all relevant

traders operating within the national territory and must affect in the same manner, in law and in fact,

the marketing of domestic products and of those from other Member States.78 The first condition

appears self evident and presents no significant interpretative problems, for such rules are inherently

discriminatory. However, the second condition and mainly the requirement that national measures

should not affect in fact foreign producers more than domestic, appears problematic especially with

view of the statement of paragraph 17 that provided that those conditions are met, the national rules

in question cannot prevent or impede market access for foreign products more than they do for

domestic. Thus, since the effect of national measures is to place foreign producers in a less

favourable situation than the domestic, the latter's access to domestic market will be prevented

and/or hindered and this mere fact will bring the national measures under the scope of art.34 TFEU,

then the entire conceptual edifice of Keck appears crumbling. Following the Court's reasoning in

0800 DocMorris case, a prohibition on advertising methods via the internet (not a product-bound

requirement) has a greater impact on pharmacies established outside German territory, impeding

therefore access to the market for products from other Member States more than it impedes access

for domestic products. Accordingly, the prohibition does not affect the sale of domestic medicines

76. Oliver Peter, 'Of Trailers and Jet Skis: Is the Case Law on Article 34 TFEU Hurtling in a New Direction?' (2011) 33 Fordham International Law Journal 1423, 1493. 77. Oliver Peter, 'Of Trailers and Jet Skis: Is the Case Law on Article 34 TFEU Hurtling in a New Direction?' (2011) 33 Fordham International Law Journal 1423, 1442.78. Joined Cases C-267&268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard [1993] ECRI-6097, para 16.

in the same way as it affects the sale of those coming from other Member States. Consequently, this

measure constitutes a MEQ to quantitative restrictions on imports and thus prohibited unless it can

be objectively justified.79 This conclusion seems to partially justify AG Jacobs criticism on Keck,

whereby he considered the measure distinctions introduced in this case inappropriate since the The

severity of the restriction imposed by different rules is merely one of degree.80 Measures affecting

selling arrangements may create extremely serious obstacles to imports, therefore a test based solely

on discrimination would not be appropriate either, notwithstanding that discriminatory measures

would necessarily fall under art.34 TFEU.81

Consequently, notwithstanding the Court's intention to clarify the existing law concerning the

ambit and outer limits of art.34 TFEU the Keck judgement can be criticised on various grounds.

Initially, it introduces one more category of measures which may conditionally be exempted from

the prohibition of the Treaty without even attempting to define in precise terms which measures

may constitute 'selling arrangements'. The inconsistent approach of the Court is subsequent cases

only increases the uncertainty. 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. 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. 82 Moreover, the application of Keck in other Treaty freedoms is problematic. The Court

has never accepted this classification to be applicable in the other freedoms, this indicating clearly

the increasing irrelevance as well as the difficulty to apply those criteria on the Treaty freedoms.83

3.3. The Situation After the Judgements in the 'use of products' Cases.

The three cases presented in this section, were brought before the Court more than ten years after

the controversial Keck judgement, dealing with a question left unanswered by the latter, namely

whether art.34 TFEU is applicable to national rules prohibiting or restricting the use of goods in the

national territory. In particular, the Court was called to decide on whether national rules, which

apply with no distinction to domestic and foreign products alike, restricting or prohibiting the use of

products in the national territory, were to be considered 'selling arrangements' evading therefore the

prohibition of art.34 TFEU if they were impeding market access, or should they be approached

79. Case C-322/01 Deutscher Apothekerverband eV v 0800 DocMorris NV and Jacques Waterval [2003] ECR I -14951, paras 74 to 76.80. Case C-412/93 Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA [1995] ECRI-209, Opinion of AG Jacobs, para 38.81. Ibid, para 39.82. Joined Cases C-158&159/04 Alfa Vita Vassilopoulos AE and Carrefour Marinopoulos AE v Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] ECR I- 08135, Opinion of AG Maduro, paras 31 and 32. 83. Case C-384/93 Alpine Investments BV v Minister van Financiën [1995] ECR I-114, paras. 33 to 38.

under the Dassonville formula, as measures having equivalent effect to quantitative restrictions.84

The first judgement delivered, concerned the Commission's objections to a Portuguese law

prohibiting the fixation of tinted film on vehicle's windows.85 The Court found the Portuguese

arguments that the restriction was based on grounds of road safety and combating crime deeply

unconvincing, having no particular difficulty in ruling that measures such the one in question

constitute measures having equivalent effect to quantitative restrictions in the sense of art.34

TFEU.86

In Commission v Italy concerned an indistinctly applicable prohibition in the Italian Highway

Code on the towing of trailers by mopeds, even applicable to trailers specially designed to be towed

by mopeds.87 In his opinion, AG Leger, argued that the measure clearly falls under the scope of

what is now art.34 TFEU, stating that:

First, it is clear from the file that the prohibition at issue is a measure that applies withoutdistinction to both domestic products and products imported from other Member States […]Second, it is undeniable that, by imposing a general and absolute prohibition on the towing oftrailers by mopeds throughout Italian territory, the national rules at issue impede the free movementof goods and, in particular, that of trailers [...] However, those rules, although not prohibitingimports of trailers and their marketing in Italy, have the effect of limiting their use throughoutItalian territory. I am therefore of the opinion that such a prohibition is liable to limit opportunitiesfor trade between the Italian Republic and the other Member States and to hamper imports and themarketing in Italy of trailers from those States, even though they are lawfully manufactured andmarketed there. In those circumstances, it seems to me that the national rules at issue constitute ameasure having an effect equivalent to a quantitative restriction, in principle prohibited by Article28 EC.88

Notwithstanding that the case was submitted before the Court in 2005 and AG Leger's opinion

was delivered in 2006, the case was subsequently referred to the Grand Chamber in 2007 in order

the parties and the MS to submit their views on whether indistinctly applicable national measures

regulating the use of certain products could be considered as MEQs to quantitative restrictions

under art.34 TFEU.89 During the oral hearing, AG Bot delivered a remarkable opinion, whereby

arguing on the useful effect of Community Law, he criticised Keck for introducing a superficial and

uncertain demarcation line,90 urging consequently the Court to apply a market access test:

In the light of the foregoing, I am of the opinion that national rules are liable to constitute a measurehaving an effect equivalent to a quantitative restriction, contrary to the Treaty, if they impede accessfor a product to the market, regardless of the aim pursued by the measure in question.91

84. Spaventa Eleonor, 'Leaving Keck behind?:The Free Movement of Goods After the Ruling in Commission v Italy andMickelsson and Roos' 34 European Law Review 914, 916.85. Case C-265/06 Commission of the European Communities v Portuguese Republic [2008] ECR I-2245.86. Case C-265/06 Commission of the European Communities v Portuguese Republic [2008] ECR I-2245, para 35.87. Case C-110/05 Commission of the European Communities v Italian Republic [2009] ECR I-519, paras 1 to 9.88. Case C-110/05 Commission of the European Communities v Italian Republic [2009] ECR I-519, opinion of AG Leger, paras 39 to 41.89. Case C-110/05 Commission of the European Communities v Italian Republic [2009] ECR I-519, opinion of AG Bot,para 6.90. Ibid, para 81.91. Ibid, para 136.

The Court in this case followed the AG's Bot's opinion and adopted the 'market access test', rulingthat:

[M]easures adopted by a Member State the object or effect of which is to treat products comingfrom other Member States less favourably are to be regarded as measures having equivalent effectto quantitative restrictions on imports within the meaning of Article 28 EC, as are the measuresreferred to in paragraph 35 of the present judgement. Any other measure which hinders access ofproducts originating in other Member States to the market of a Member State is also covered by thatconcept.92

In Mickelssson and Roos case, the defendants were prosecuted for using their personal watercraft

outside the 'general navigable waterways' as designated by the competent national authority,

contrary to Swedish Regulation 1993:1053.93 What is worth mentioning in this case, is AG Kokott's

opinion, proposing an entirely new approach to what she defined as 'national rules governing how

and where products may be used'.94 In her view, arrangements relating to use are comparable to

selling arrangements in terms of their nature and the intensity of their effects on trade in goods and

therefore the Keck criteria should be extended to national rules regulating the use of goods.95 The

Court, however did not follow her reasoning. With no reference to Keck or whatsoever, the Court

repeated the definition of 'barriers to trade' as stated in the Commission v Italy case, in order to

establish the market access test.96 Consequently, the rules restricting the use of personal watercrafts

were a barrier to market access, justified nevertheless on grounds of protection of animals, plants

and humans as well as on environmental protection grounds.

The three cases considered under this section signal clearly the intention of the Court to regain

judicial control over national rules regulating the use of lawfully marketed products.97 The common

thread in these rulings is the great emphasis placed in the position of consumer, and changes in the

product's demand arising from domestic rules in relation to market access.98 Clearly, the 'market

access' test constitutes the main approach of the Court towards national legislation, which however

is attempted to be aligned to the Dassonville formula, while maintaining the exclusion of 'certain

selling arrangements' which satisfy the Keck criteria.99 According to the Court:

It should be recalled that, according to settled case-law, all trading rules enacted by Member Stateswhich are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade

92. Case C-110/05 Commission of the European Communities v Italian Republic [2009] ECR I-519, para 37.93. Case C-142/05 Åklagaren v Percy Mickelsson and Joakim Roos [2009] ECR I-04273, para 2.94. Case C-142/05 Åklagaren v Percy Mickelsson and Joakim Roos [2009] ECR I-04273, opinion of AG Kokott, para 44.95. Case C-142/05 Åklagaren v Percy Mickelsson and Joakim Roos [2009] ECR I-04273, opinion of AG Kokott, paras 47, 52 and 56.96. Case C-142/05 Åklagaren v Percy Mickelsson and Joakim Roos [2009] ECR I-04273, para 24.97. Fenger Niels and Schonberg Soren, 'To Use or not to Use- That is the Question on Article 34 and National Rues Restricting the Use of Lawfully Marketed Products' in Koch H, Haltern U, Hagel- Sorensen K (eds) Europe: The New Legal Realism: Essays In Honour of Hjalte Rasmussen (Djar Publishing, 2011), 171.98. Gormley Lawrence, 'Free Movement of Goods and their Use- What is the Use of it?' (2010) 33 Fordham International Law Journal 1589, 1621.99. Ibid, 1622.

are to be considered as measures having an effect equivalent to quantitative restrictions and are, onthat basis, prohibited […] It is also apparent from settled case-law that Article 28 EC reflects theobligation to respect the principles of non-discrimination and of mutual recognition of productslawfully manufactured and marketed in other Member States, as well as the principle of ensuringfree access of Community products to national markets.[...]By contrast, the application to productsfrom other Member States of national provisions restricting or prohibiting certain sellingarrangements is not such as to hinder directly or indirectly, actually or potentially, trade betweenMember States for the purposes of the case-law flowing from Dassonville, on condition that thoseprovisions apply to all relevant traders operating within the national territory and that they affect inthe same manner, in law and in fact, the marketing of domestic products and of those from otherMember States. Provided that those conditions are fulfilled, the application of such rules to the saleof products from another Member State meeting the requirements laid down by that State is not bynature such as to prevent their access to the market or to impede access any more than it impedesthe access of domestic products [...] Consequently, measures adopted by a Member State the objector effect of which is to treat products coming from other Member States less favourably are to beregarded as measures having equivalent effect to quantitative restrictions on imports within themeaning of Article 28 EC [...] Any other measure which hinders access of products originating inother Member States to the market of a Member State is also covered by that concept.100

The above clearly indicate the switch to a market oriented approach which is consistent to the

Dassonville and Cassis de Dijon rationale. The Court by questioning the basic Keck innovations,

made a conscious attempt to re-align its case law on the free movement of goods to the other Treaty

freedoms, so that any barriers to economic freedom are brought under art.34 TFEU. Henceforth,

national measures restricting the free movement of products can only be justified by reference to the

rigid EU Law framework.101 Notwithstanding the relative uncertainty concerning the exact content

of the 'market access' test as well as the fact that it appears to introduce one more category of 'non

product- bound' measures that can be examined under art.34 TFEU,102 it indicates clearly that the

circumstances and considerations which gave birth to Keck are becoming increasing anomalous and

unworkable.103 Consequently, the Keck criteria survive only typically after the 'use cases', appearing

100. Case C-110/05 Commission of the European Communities v Italian Republic [2009] ECR I-519, paras 33 to 38, emphasis added.101. Horsley Thomas,' Anyone for Keck?' (2009) 46 Common Market Law Review 2001, 2008.102. Indicative is the attempt to summarise all domestic measures potentially encompassed by the prohibition of art.34TFEU in Oliver Peter, 'Of Trailers and Jet Skis: Is the Case Law on Article 34 TFEU Hurtling in a New Direction?'(2011) 33 Fordham International Law Journal 1423, 1469, whereby: The definition may be summarized in the followingpropositions: (1) The underlying principle is that measures which restrict imports actually or potentially, directly orindirectly, are caught by this concept (Dassonville). This test involves an examination of the inherent characteristics ofthe measure and does not entail an economic or statistical analysis. (2) A measure falls outside the scope of article 34 ifits impact on imports is manifestly too “uncertain and indirect” (Peralta). This is part and parcel of the Dassonvilleformula, not a separate rule. (3) For all measures other than those relating to selling arrangements—whether or not theyare “product-bound” measures, such as those listed in paragraph 15 of the judgement in Keck—no discriminationagainst imports need be shown. However, measures which do discriminate against imports automatically constitutemeasures of equivalent effect. (4) Only rules relating to selling arrangements are subject to a test of de jure or de factodiscrimination. Such rules include: restrictions on when goods may be sold; restrictions on where or by whom they maybe sold; price controls; and advertising restrictions. The requirement that such rules “apply to all affected tradersoperating within the national territory” of the Member State concerned has no place in this area of the law and should beexpressly abandoned. The concept of de facto discrimination is to be interpreted broadly, but not all restrictions onimports fall within this concept. In any case, total bans on advertising are considered to be discriminatory per se. (5) Incase of doubt, a measure is not to be regarded as relating to selling arrangements so that the general rule in point 3above applies. 103. Gormley Lawrence, 'Free Movement of Goods and their Use- What is the Use of it?' (2010) 33 Fordham International Law Journal 1589, 1626.

increasingly irrelevant as the circumstances which triggered this reactionary decision do not play

any more an important role in the Court's consideration.

4. Conclusions.

The present paper addressed two contentious issues that have been stirring the academic debate

concerning the freedom of movement of products, as well as the other Treaty freedoms since the

late 1960s. The first issue was the admissibility of a quantified threshold beyond which national rule

affecting intra- Community trade would not fall under the prohibition of arts 30 and 34.TFEU. This

hypothesis stemmed from the requirement of subsidiarity in EU Law, aimed on protecting the

national regulatory powers against the intrusiveness of the Dassonville formula. The main argument

of the advocates of such proposal is that national rules affecting trade by a negligible margin, or in a

very small proportion of national territory or alternatively their effect is 'too remote or uncertain'

should be permissible in analogy with competition or state aid law. However, the main weakness of

such proposal is their imprecise and vague nature, failing to provide a convincing response on the

ideal limit of a de minimis rule. Consequently, the criteria for establishing such threshold are

unclear, rendering the hypothesis unworkable and likely to re-introduce restrictions on trade from

the back door. The second part of the essay, dealt with the controversial Keck judgement, regarding

it as a partially predictable product of the considerations of the time it was delivered. The reaction

to the attempts to challenge any national rule relevant to trade on the basis of the very wide

Dassonville rule, called for a clarification of the existing law and for protection of the MS

regulatory sovereignty. However, the ruling in this case did not increase legal certainty by

introducing an additional, undefined category of rules, the 'selling arrangements', that provided that

two cumulative conditions are fulfilled can evade the prohibition of art.34 TFEU. This distinction,

having aroused considerable controversy, seems increasingly irrelevant after the rulings in the three

'use of products' cases and the balance is turned once more in favour of unimpeded trade unless

objectively justified. This does not imply that the Court is motivated by liberal political

considerations in the detriment of national sovereignty or consumers rights. Consequently, as

response to AG Tesauro's question on the role of art34 TFEU quoted in the introduction of this

paper:

[C]ommunity nationals cannot draw from this provision an absolute right to economic orcommercial freedom. Indeed, the Treaty provisions relating to the free movement of goods aim toguarantee the opening-up of national markets, offering producers and consumers the possibility offully enjoying the benefits of a Community internal market, and not to encourage a generalderegulation of national economies. It is indeed true that the opening-up of national marketsimposed by the Community provisions relating to freedom of movement can also, in some cases,have an effect of liberalising national economies.[...] To the extent that the objectives of the internal

market require not only combating discrimination based on nationality but also the opening-up ofnational markets to new products, services or economic operators, it is clear that their applicationcan have a certain effect of liberalising national economies. The fact remains that, in the context ofthe establishment of an internal market, the fundamental objective of the principle of freemovement of goods is to ensure that producers are put in a position to benefit, in fact, from the rightto carry out their activity at a cross-border level, while consumers are put in a position to access, inpractice, products from other Member States in the same conditions as domestic products. Such wasthe intention of the Treaty drafts men; such has been the approach of the Court which hasimplemented it. However, it appears to me that it would be neither satisfactory nor true to thedevelopment of the case-law to reduce freedom of movement to a mere standard of promotion oftrade between Member States. It is important that the freedoms of movement fit into the broaderframework of the objectives of the internal market and European citizenship. At present, thefreedoms of movement must be understood to be one of the essential elements of the 'fundamentalstatus of nationals of the Member States' They represent the cross-border dimension of theeconomic and social status conferred on European citizens. However, the protection of such a statusrequires going beyond guaranteeing that there will be no discrimination based on nationality. Itmeans Member States taking into account the effect of the measures they adopt on the position ofall European Union citizens wishing to assert their rights to freedom of movement. As the Courtpointed out in Deutscher Apothekerverband, that requires consideration of a broader scale than astrictly national context.104

104. Joined Cases C-158&159/04 Alfa Vita Vassilopoulos AE and Carrefour Marinopoulos AE v Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] ECR I- 08135, Opinion of AG Maduro paras 37 to 41.

Bibliography:

1. Books:

Barnard Catherine, The Substantive Law of the EU: The Four Freedoms (4th edn, Oxford UniversityPress,2013)Chalmers Damian, Davies Gareth and Monti Giorgio, European Union Law (2nd edn, CambridgeUniversity Press, 2011)Tamara Perišin, Free Movement of Goods and Limits of Regulatory Autonomy in the EU and WTO(T.M.C. Asser Press 2008),

2. Contributed Articles in Books:

Fenger Niels and Schonberg Soren, 'To Use or not to Use- That is the Question on Article 34 andNational Rues Restricting the Use of Lawfully Marketed Products' in Koch H, Haltern U, Hagel-Sorensen K (eds) Europe: The New Legal Realism: Essays In Honour of Hjalte Rasmussen (DjarPublishing, 2011)Gormley Lawrence, 'The Definition of Measures Having Equivalent Effect' in Arnull, Eeckhout andTridimas(eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (OxfordUniversity Press,2008)

3. Articles:

Gormley Lawrence, 'Inconsistencies and Misconceptions in the Free Movement of Goods' (2015),(forthcoming)Gormley Lawrence, 'Free Movement of Goods and their Use- What is the Use of it?' (2010) 33Fordham International Law Journal 1589Gormley Lawrence, 'Competition and Free Movement: Is the Internal Market the Same as theCommon Market?' (2002) 6 European Business Law Review 517Gormley Lawrence,'Two Years After Keck' (1995) 19 Fordham International Law Journal 866Hojnik Janja,'De Minimis Rule Within the Internal Market: Towards a More Mature and LegitimateMarket?' (2013) 6 European Journal of Legal Studies 25Horsley Thomas,' Anyone for Keck?' (2009) 46 Common Market Law Review 2001Jansson Max and Kalimo Harry, 'De Minimis Meets ''Market Access'': Transformation in theSubstance -and the Syntax -of EU Free Movement Law?' (2014) 51 Common Market Law Review523Krenn Cristoph, 'A Missing Piece In the Horizontal Effect ''Jigsaw'': Horizontal Direct Effect andthe Free Movement of Goods' (2012) 49 Common Market Law Review 177Lianos Ioannis,'In Memoriam Keck: The Reformation of the EU Law on the Free Movement ofGoods' (2014) 5 Centre for Law Economics and Society Research Paper SeriesOliver Peter, 'Of Trailers and Jet Skis: Is the Case Law on Article 34 TFEU Hurtling in a NewDirection?' (2011) 33 Fordham International Law Journal 1423Oliver Peter, 'Some Further Reflections on the scope of articles 28-30' (1999) 86 Common MarketLaw Review 783Reich Norbert, 'The ''November Revolution'' of the European Court of Justice: Keck, Meng andAudi Revisited' (1994) 31 Common Market Law Review 459Spaventa Eleonor, 'Leaving Keck behind?:The Free Movement of Goods After the Ruling inCommission v Italy and Mickelsson and Roos' 34 European Law Review 914

4. Case Law (arranged in chronological order):

Case C-24/68 Commission v Italy [1969] ECR 193Case C-8/74 Procureur du Roi and Benoit and Gustave Dassonville [1974] ECR 837Case C-286/81 Criminal proceedings against Oosthoek's Uitgeversmaatschappij BV [1982] ECR I-4575Joined Cases C-177&178/82 Jan Van De Haar and Kaveka de Meern B.V [1984] ECR 1797C-269/83 Commission v France [1985] ECR 837Case C-382/87 R. Buet and Educational Business Services (EBS) v Ministère public [1987] ECR I-1235Case C-69/88 H. Krantz GmbH & Co. v Ontvanger der Directe Belastingen and Netherlands State[1990] ECR I 583Case C-103/84 Commission v Italy [1991] ECR I-02457Case C-76/90 Manfred Säger v Dennemeyer & Co. Ltd. [1991] ECR I-4221Case C-312/89 Union départementale des syndicats CGT de l'Aisne and SIDEF-Conforama,Société Arts et Meubles, Société JIMA [1991] ECR I-1021Case C-332/89 Criminal proceedings against André Marchandise, Jean-Marie Chapuis, and SATrafìtex, [1991] ECR I-1038Case C-126/91 Schutzverband gegen Unwesen in der Wirtschaft e.V. v Yves Rocher GmbH [1993]ECR I-02361Case C-93/92 CMC Motorradcenter GmbH v Pelin Baskiciogullar [1993] ECR I-05009Case C-292/92 Ruth Hünermund and others v Landesapothekerkammer Baden-Württemberg [1993]ECR I-6816Case C-292/92 Ruth Hünermund and others v Landesapothekerkammer Baden-Württemberg [1993]ECR I-6800, Opinion of AG TesauroJoined Cases C-277, 318 and 319/91 Ligur Carni Srl and Genova Carni Srl v Unità SanitariaLocale [1993] ECR I-6621Joined Cases C-267&268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard[1993] ECRI-6097Case C-379/92 Criminal Proceedings against Matteo Peralta [1994] ECR I-03453Joined Cases C-401&401/92 Criminal Proceedings Against Tankstation 't Heukske vof and J. B. E.Boermans [1994] ECR I-2227Case C-384/93 Alpine Investments BV and Minister van Financiën [1995] ECR I- 1167Case C-96/94 Centro servizi spediporto v spedizioni marittima [1995] ECR I-2883Case C-412/93 Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 PublicitéSA [1995] ECR I-209Case C-412/93 Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 PublicitéSA [1995] ECR I-209, Opinion of AG JacobsJoined Cases C-418/93, C-419/93, C-420/93, C-421/93, C-460/93, C-461/93, C-462/93, C-464/93,C-9/94, C-10/94, C-11/94, C-14/94, C-15/94, C-23/94, C-24/94 and C-332/94 Semeraro Casa UnoSrl et al [1996] ECR I-2975Case C-67/87 Bluhme [1998] ECR I- 08033Case C-266/96 Corsica Ferries France SA v Gruppo Antichi Ormeggiatori del porto di GenovaCoop. arl, Gruppo Ormeggiatori del Golfo di La Spezia Coop. arl and Ministero dei Trasporti edella Navigazione[1998] ECR I-03949C-184/96 Case C-184/96 Commission v. France (Foie Gras) [1998] E.C.R. I-6197Case C-44/98 BASF AG v Präsident des Deutschen Patentamts [1999] ECR I-6269Case C-190/98 Volker Graf v Filzmoser Maschinenbau GmbH [2000] ECR I-495Case C-254/98 Schutzverband gegen unlauteren Wettbewerb v TK-Heimdienst Sass GmbH. [2000]ECR I-151Case C-405/98 Konsumentombudsmannen v. Gourmet Int’l Products AB [2001] E.C.R. I-1795Case C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279

Case C-322/01 Deutscher Apothekerverband eV v 0800 DocMorris NV and Jacques Waterval[2003] ECR I -14951.Case C-20/03 Criminal Proceedings Against Marcel Burmanjer and Others [2004] ECR I-4135Case C-309/02 Radlberger Getränkegesellschaft mbH & Co. and S. Spitz KG v Land Baden-Württemberg [2004] ECR I-11763Case C-166/03 Commission of the European Communities v French Republic [2004] ECR I-06535Case C-134/03 Viacom Outdoor Srl v Giotto Immobilier SARL [2005] ECR I-01167Joined Cases C-158&159/04 Alfa Vita Vassilopoulos AE and Carrefour Marinopoulos AE v EllinikoDimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] ECR I- 08135, Opinion of AG MaduroCase Case C-265/06 Commission of the European Communities v Portuguese Republic [2008] ECRI-2245Case C-531/07 Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH [2009] ECR I- 3717Case C-110/05 Commission of the European Communities v Italian Republic [2009] ECR I-519C-142/05 Åklagaren v Percy Mickelsson and Joakim Roos [2009] ECR I-04273

5. Soft Law:

European Commission, 'Free Movement of Goods: Guide to the Application of Treaty ProvisionsConcerning the Free Movement of Goods' COM(2010) final