Keck and Mithouard
(2002)Department of Law
- Abstract
- Article 28 is one of the key Treaty Articles concerning the integration of national markets. But finding the right way to apply Article 28 is far from being easy, as history shows. The ECJ has not been consistent in its case law on Article 28 EC. The main problem in its approach in the application of Article 28 has been the wideness of the Dassonville-formula, which by its wording catches smallest restrictions, and when such a rule is considered to catch indistinctly applicable measures, as was decided in Cassis de Dijon, the limits of the outer boundaries of Article 28 almost disappear, because almost every rule which regulates trade in the Member States can in fact be said to affect intra-Community trade in some way. This approach by the... (More)
- Article 28 is one of the key Treaty Articles concerning the integration of national markets. But finding the right way to apply Article 28 is far from being easy, as history shows. The ECJ has not been consistent in its case law on Article 28 EC. The main problem in its approach in the application of Article 28 has been the wideness of the Dassonville-formula, which by its wording catches smallest restrictions, and when such a rule is considered to catch indistinctly applicable measures, as was decided in Cassis de Dijon, the limits of the outer boundaries of Article 28 almost disappear, because almost every rule which regulates trade in the Member States can in fact be said to affect intra-Community trade in some way. This approach by the ECJ therefore led to problems in setting limits to the outer boundaries of the Article 28, as became obvious in Cinéthéque and later the Sunday trading cases. Before its ruling in Cinéthéque the ECJ seemed to make a distinction between equal burden and dual burden rules when applying Article 28 EC to limit its scope, and although that approach is primarily based on the question if there has been any discrimination, and not on the effect of the rule as in Dassonville, this approach at least made the application of Article 28 easier. But in Cinéthéque the ECJ decided to use a different approach, and applied Article 28 to an equal burden rule, and based this opinion on the presumption that the application of the system there might create barriers to intra-Community trade. In Cinéthéque the restriction was a complete ban on sale for a certain time, and maybe the ECJ felt that for that reason it was difficult to let the rule fall outside the scope of Article 28. But nevertheless this judgment clearly got the attention of traders and defence lawyers throughout Europe. This judgment meant that non-discriminating rules with little and uncertain potential effects on intra-Community trade could be tried before the ECJ. As an answer to criticism on this wide approach to apply Article 28 the ECJ gave the ruling in Keck, and there a new rule-based approach to Article 28 was presented. According to it certain selling arrangements would fall outside the scope of Article 28, if they fulfilled the conditions laid down in the judgment. But as has been pointed out by many, and perhaps most clearly by Advocate General Jacobs, this approach, to make a distinction between categories of rules, letting one category fall inside the scope of Article 28 but the other one outside its scope is not just. The presumption in Keck that ''selling arrangements'' are ''not by nature such as to prevent...access to the market'' is very questionable to say the least. It is right that restrictions on circumstances in which certain or all goods might be marketed do normally not obviously interfere with the free movement of goods but nevertheless it is clearly wrong to say that such a legislation never has effects on trade between Member States. Although its effects are probably most often insignificant it can in some circumstances have some effects. In my opinion Keck was not a good judgment. It was for example very unclear regarding the scope of the important phrase ''selling arrangements''. And in later cases the ECJ decided to interpret this phrase in a wide way, for example to advertising. In my opinion the ECJ should have applied Keck in a narrow way, making distinction between static and non-static selling arrangements, by not applying Keck to the ways which include how a manufacturer chooses to market his specific product. Then it could for example have avoided the difficulties it later experienced in applying Keck to advertising. Keck is an exception from the main rule in Article 28, and that should mean that it should be confined narrowly. Keck was intended to limit the scope of Article 28 which many commentators considered too unclear. It was clearly intended to open a way out of the scope of Article 28 for rules which only had uncertain and indirect effects on intra-Community trade. It was in other words intended to keep farfetched claims from falling within the scope of Article 28. But this could have been done with a different approach. The main problem in the application of Article 28 has been that the ECJ has constantly refused to apply a de minimis rule to limit its scope. But on the other hand the ECJ has, in cases such as Peralta and DIP SpA, stated that when the effects of a measure are too ''uncertain and indirect'' the measure should fall outside the scope of Article 28. In my opinion the ECJ could use this approach more frequently. It makes a lot more sense to let a rule fall outside the scope of Article 28 because of the fact that its effects are uncertain and indirect than basing the judgment on the fact that the rule falls inside the scope of a certain category of rules. By reaching the conclusion in Keck the ECJ went in my opinion too far from the essence of Article 28, Dassonville and Cassis. It is a fact that the effects of selling arrangements in the field of free movement of goods are generally uncertain and indirect and therefore they could in most cases fall outside the scope of Article 28, as the rules in Peralta and DIP SpA. It can even be said that there are certain similarities between the approaches in Peralta and DIP SpA on one hand and Keck on the other. In Peralta and DIP SpA the ECJ concluded that the rules fell outside the scope of Article 28 because their effect were ''too uncertain and indirect'', and the presumption in Keck that national rules which restrict certain selling arrangements do not hinder trade within the meaning of the Dassonville-formula is in fact based on a similar approach. The difference is that according to Keck, rules falling within a certain category of rules are presumed to have such indirect and uncertain effects. It has not yet been made clear by the ECJ if Keck should be applied to other fields than free movement of goods. In my opinion it should not. Although Keck was not the right approach to limit the outer boundaries of Article 28, it is true that the selling arrangements which were precluded from the application of Article 28 do not affect intra-Community trade in most circumstances. So the distinction made in Keck between rules regarding selling arrangements and other rules does make some sense in the field of goods. But the nature of the other fields is on the other hand different so even if a similar distinction can be made between rules in this field it would be wrong to let a category of rules fall outside the relevant Treaty Articles without further justifications. In the other fields this distinction can therefore not be made between categories of rules. Regarding how the ECJ has limited the scope of Articles 39 and 49 EC it is interesting to take a look at on what grounds the ECJ reached its conclusion in Graf. There it completely ignored Keck and stated that the effects of rules in question were too uncertain and indirect for the rules to be caught by Article 39. And I believe that the ECJ could use this kind of approach on more occasions, not only in those two fields, but also within the free movement of goods. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/1554601
- author
- Thorvaldsson, Björn
- supervisor
- organization
- year
- 2002
- type
- H1 - Master's Degree (One Year)
- subject
- keywords
- European Affairs
- language
- English
- id
- 1554601
- date added to LUP
- 2010-03-08 15:22:29
- date last changed
- 2010-03-08 15:22:29
@misc{1554601,
abstract = {{Article 28 is one of the key Treaty Articles concerning the integration of national markets. But finding the right way to apply Article 28 is far from being easy, as history shows. The ECJ has not been consistent in its case law on Article 28 EC. The main problem in its approach in the application of Article 28 has been the wideness of the Dassonville-formula, which by its wording catches smallest restrictions, and when such a rule is considered to catch indistinctly applicable measures, as was decided in Cassis de Dijon, the limits of the outer boundaries of Article 28 almost disappear, because almost every rule which regulates trade in the Member States can in fact be said to affect intra-Community trade in some way. This approach by the ECJ therefore led to problems in setting limits to the outer boundaries of the Article 28, as became obvious in Cinéthéque and later the Sunday trading cases. Before its ruling in Cinéthéque the ECJ seemed to make a distinction between equal burden and dual burden rules when applying Article 28 EC to limit its scope, and although that approach is primarily based on the question if there has been any discrimination, and not on the effect of the rule as in Dassonville, this approach at least made the application of Article 28 easier. But in Cinéthéque the ECJ decided to use a different approach, and applied Article 28 to an equal burden rule, and based this opinion on the presumption that the application of the system there might create barriers to intra-Community trade. In Cinéthéque the restriction was a complete ban on sale for a certain time, and maybe the ECJ felt that for that reason it was difficult to let the rule fall outside the scope of Article 28. But nevertheless this judgment clearly got the attention of traders and defence lawyers throughout Europe. This judgment meant that non-discriminating rules with little and uncertain potential effects on intra-Community trade could be tried before the ECJ. As an answer to criticism on this wide approach to apply Article 28 the ECJ gave the ruling in Keck, and there a new rule-based approach to Article 28 was presented. According to it certain selling arrangements would fall outside the scope of Article 28, if they fulfilled the conditions laid down in the judgment. But as has been pointed out by many, and perhaps most clearly by Advocate General Jacobs, this approach, to make a distinction between categories of rules, letting one category fall inside the scope of Article 28 but the other one outside its scope is not just. The presumption in Keck that ''selling arrangements'' are ''not by nature such as to prevent...access to the market'' is very questionable to say the least. It is right that restrictions on circumstances in which certain or all goods might be marketed do normally not obviously interfere with the free movement of goods but nevertheless it is clearly wrong to say that such a legislation never has effects on trade between Member States. Although its effects are probably most often insignificant it can in some circumstances have some effects. In my opinion Keck was not a good judgment. It was for example very unclear regarding the scope of the important phrase ''selling arrangements''. And in later cases the ECJ decided to interpret this phrase in a wide way, for example to advertising. In my opinion the ECJ should have applied Keck in a narrow way, making distinction between static and non-static selling arrangements, by not applying Keck to the ways which include how a manufacturer chooses to market his specific product. Then it could for example have avoided the difficulties it later experienced in applying Keck to advertising. Keck is an exception from the main rule in Article 28, and that should mean that it should be confined narrowly. Keck was intended to limit the scope of Article 28 which many commentators considered too unclear. It was clearly intended to open a way out of the scope of Article 28 for rules which only had uncertain and indirect effects on intra-Community trade. It was in other words intended to keep farfetched claims from falling within the scope of Article 28. But this could have been done with a different approach. The main problem in the application of Article 28 has been that the ECJ has constantly refused to apply a de minimis rule to limit its scope. But on the other hand the ECJ has, in cases such as Peralta and DIP SpA, stated that when the effects of a measure are too ''uncertain and indirect'' the measure should fall outside the scope of Article 28. In my opinion the ECJ could use this approach more frequently. It makes a lot more sense to let a rule fall outside the scope of Article 28 because of the fact that its effects are uncertain and indirect than basing the judgment on the fact that the rule falls inside the scope of a certain category of rules. By reaching the conclusion in Keck the ECJ went in my opinion too far from the essence of Article 28, Dassonville and Cassis. It is a fact that the effects of selling arrangements in the field of free movement of goods are generally uncertain and indirect and therefore they could in most cases fall outside the scope of Article 28, as the rules in Peralta and DIP SpA. It can even be said that there are certain similarities between the approaches in Peralta and DIP SpA on one hand and Keck on the other. In Peralta and DIP SpA the ECJ concluded that the rules fell outside the scope of Article 28 because their effect were ''too uncertain and indirect'', and the presumption in Keck that national rules which restrict certain selling arrangements do not hinder trade within the meaning of the Dassonville-formula is in fact based on a similar approach. The difference is that according to Keck, rules falling within a certain category of rules are presumed to have such indirect and uncertain effects. It has not yet been made clear by the ECJ if Keck should be applied to other fields than free movement of goods. In my opinion it should not. Although Keck was not the right approach to limit the outer boundaries of Article 28, it is true that the selling arrangements which were precluded from the application of Article 28 do not affect intra-Community trade in most circumstances. So the distinction made in Keck between rules regarding selling arrangements and other rules does make some sense in the field of goods. But the nature of the other fields is on the other hand different so even if a similar distinction can be made between rules in this field it would be wrong to let a category of rules fall outside the relevant Treaty Articles without further justifications. In the other fields this distinction can therefore not be made between categories of rules. Regarding how the ECJ has limited the scope of Articles 39 and 49 EC it is interesting to take a look at on what grounds the ECJ reached its conclusion in Graf. There it completely ignored Keck and stated that the effects of rules in question were too uncertain and indirect for the rules to be caught by Article 39. And I believe that the ECJ could use this kind of approach on more occasions, not only in those two fields, but also within the free movement of goods.}},
author = {{Thorvaldsson, Björn}},
language = {{eng}},
note = {{Student Paper}},
title = {{Keck and Mithouard}},
year = {{2002}},
}