THE LIMIT OF ARTICLE 28 EC - the ten year development of Keck and Mithouard
Abstract: The Treaty provisions regulating the free movement of goods are articles 28 to 31 EEC (former articles 30 to 36). Article 28 prohibits Member States from discriminating, that is, favouring or in any other way putting its domestic products at an advantage against imported products unless the Member State can find just cause under article 30 (former article 36) for its practices. For a national measure to fall within the scope of article 28 it must be a measure equivalent to quantitative restrictions (MEQR). The basic principle considering MEQR was laid down by the Court in the case Dassonville Case 8/74, Procureur du Roi v. Dasonville,  ECR 837. There the Court stated that ''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 effect equivalent to quantitative restrictions.'' Dassonville, Para 5 However, the early case law had given the article a too wide range of application. Nearly every national measure that in any way affected products from other Member States could be caught by article 28. The article was described as a loose tiger Maria-Pia Midenbäck, ''The European Court of Justice and the interpretation of article 30 EC - The taming of the tiger'', JT 1994/95 p 972. This was a situation that became somewhat frustrating for the Member States and for the Court, which got more and more complaints from traders whenever a national measure restricted their commercial freedom. A debate arose on the issue whether some national measures actually had nothing to do with trade between Member States and the free movement of goods. Such measures could be rules regulating how, where and by whom products may be sold. These rules could have a potential indirect hindrance in the sense that the rules could restrict the volume of sales. However, the rules did not restrict the marketing of imported products more than it restricted domestic. The main question was whether these rules constituted a hindrance on trade between Member States only permissible if justified under the mandatory requirements, or if these types of rules entirely fell outside the scope of art 28. Should the Court apply the Dassonville formula literally and let it catch all national measures even remotely capable of restricting trade, or should some measures simply escape the formula completely? It was in the case Keck and Mitouard Joined cases C-267/97 and C-268/91, Keck and Mithouard,  ECR I-6097 where the Court presented the so called Keck formula or the Keck test, which changed the structure of the principle of free movement of goods and the scope of article 28. The Court presented a general principle which could help the national courts to determine whether a national measure hindered trade or not. The test or formula established in Keck is to be used to ascertain whether a national measure directly, indirectly, actually or potentially hinders trade within the meaning of the Dassonville ruling. The Keck formula divides national measures into two types of rules. One set of rules does, by its nature hinder trade, whereas the other does not, provided it fulfils two conditions. The first types of national measures are the so-called product-bound measures. Product-bound measures are rules, which impose additional requirements on the product as such despite the requirements imposed by the country of origin. These types of rules are found to restrict trade and thus fall within article 28. The second type of rules are called selling arrangements. Selling arrangements are rules regulating when, where and by whom goods may be sold, advertising restrictions and price controls. These sets of rules are perceived by their nature not to impede the market access of imports more than they prevented the market access of domestic products, provided they 1&semic apply to all relevant traders operating within the national territory and 2&semic apply equally in law and in fact to domestic and imported products. Such rules do subsequently fall outside the scope of article 28. Still, many reacted to the Courts reasoning or what they saw as lack of reasoning in the Keck ruling Weatherill, ''After Keck: Some thoughts on how to clarify the clarification''  C.M.L Rev. 33. 885&semic Opinion of Advocate.General. Jacobs Case 412/93 Leclerc-Siplec, ECR  179, Weatherill, ''After Keck: Some thoughts on how to clarify the clarification''  C.M.L Rev. 33. 885&semic Opinion of Advocate.General. Jacobs Case 412/93 Leclerc-Siplec, ECR  179. Some found the judgement too formalistic and somewhat arrogant because of the lack of explanations to the new vocabulary, such as selling arrangements. The concept of selling arrangements was unclear at the time and it is only through subsequent case law that the notion of the term selling arrangements has become clear. The Court also stated in the ruling that it was more or less tired of traders who time after time challenged national rules because it restricted their commercial freedom and because of this, the Court found it necessary to re-evaluate its case law. The ruling in Keck was a trend breaker in the Court's previous somewhat inconsistent case law. However, the Court failed to mention which cases that no longer constituted good law. Even if the Courts intention was to give article 28 a clear-cut application, some things remained unclear. Some also found the Keck formula incorrect to use as a general principle because it did not accentuate the true objective of article 28. For example it was pointed out that the categorisation of national rules reflects only on the form of the rules, missing the effect they have on trade between Member States. This was contrary to the ruling in Dassonville where the effect of the national measure was the important issue and not the form the rule had. Critics thought that the key issue should not be whether the national measure is a selling arrangement or if it applies equally to all traders in law and in fact, but whether the measure ''...exerts a substantial restriction on the access to the national market'' Wheatherill, ''After Keck: Some thoughts on how to clarify the clarification''  C.M.L Rev. 33 p 890. Many of the questions that arose in relation to the ruling in Keck have over the ten year period that has passed since the case was decided been answered through the Courts case law and application of the Keck formula. The concept of selling arrangements has been defined, and with the understanding of that, one can conclude, more or less, which cases that have through Keck been overruled. The Court has in recent cases emphasised the importance of the imported product's possibility to access the market of the importing Member State. This shows that the Court recognises the importance of a market access approach. The Court states that when a national rule could be described as an outright ban one should bare in mind that such a measure could have a greater impact on imported products than on domestic Joined cases C-34/95, -35/94 and -36/94, Konsumentombudsmannen (KO) v. De Augostini and TV.Shop,  ECR I-3843. The Court implies with this statement that a market access approach does indeed exist in the Keck formula, even if it is not a primary issue. Still, some issues remain unanswered. The most important one is how the discrimination in fact of imported goods is to be determined when the Court is reluctant to use economic data. Some progress has been made even in this area. The Court has in its recent case law implied that it is possible for it to consider economic data, however, this statement is not clear enough. This issue is the Keck formulas downfall. The assessment of equality in fact is the big problem when applying the formula, which in its other aspects is a fairly easy test, in terms of application. On the other hand, considering the alternative approaches suggested, the Keck formula is as a general principle the best way to determine the limit to article 28.
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