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Do Keck and post Keck cases remove or create obstacles for advertising in EC?

Kupèinskas, Vilius (2004)
Department of Law
Abstract
Free movement of goods is regulated by Article 28 of The EC Treaty. The most important judgments of European Court of Justice (ECJ) in this field are Dassonville, Cassis de Dijon and Keck. The interpretation of Article 28 was very broad in Dassonville and Cassis cases therefore the national rules which were designed for social policy reasons, but not for controlling the trade between Member States (MS), were also challenged. The ECJ in the Keck judgment attempted to define the limits of Article 28. It made a distinction between national rules which fall and which do not under the scope of Article 28. The Article 28 is still being applied for the rules setting requirements for the goods themselves, but it is not applied for ''certain... (More)
Free movement of goods is regulated by Article 28 of The EC Treaty. The most important judgments of European Court of Justice (ECJ) in this field are Dassonville, Cassis de Dijon and Keck. The interpretation of Article 28 was very broad in Dassonville and Cassis cases therefore the national rules which were designed for social policy reasons, but not for controlling the trade between Member States (MS), were also challenged. The ECJ in the Keck judgment attempted to define the limits of Article 28. It made a distinction between national rules which fall and which do not under the scope of Article 28. The Article 28 is still being applied for the rules setting requirements for the goods themselves, but it is not applied for ''certain selling arrangements.'' The advertising also falls under the category of ''certain selling arrangements.'' There were many concerns that if Keck formula were applied in a formal way the national provisions restricting advertising could also fall outside of Article 28. ECJ denied these concerns. The post Keck case law proved that advertising could be safeguarded with the Keck formula. ECJ found that national rules concerning ''certain selling arrangements'' could be discriminatory and non-discriminatory. According to ECJ, the discriminatory rules should always fall under the scope of Article 28 and have to be justified by imposing MS. The non discriminatory rules fall only under the scope of Article 28 , if their effect on the intra Community trade is substantial. The Keck formula was able to deal with the situations which occurred in the past. However, some problems might occur in the future due to a fast development of technologies and advertising methods. That is why there is a need to modify this formula. The modified formula should look like this: The national rules which set the requirements for the goods themselves always fall under the scope of Article 28&semic the discriminatory provisions also always fall under the scope of Article 28&semic the non discriminatory provisions fall under the scope of Article 28, only if they can substantially hinder the trade between MS. The restrictions might be justified under Article 30 and the conditions laid down in Cassis case, if they are proportional to the goal which they are seeking. The rules concerning the advertising and the protection of public interest have on been fully harmonized in EC level yet. The case law of ECJ could be the good mean of filling the gaps which occur between national and EC laws. It is possible to find a balance between freedom of advertising and protection of public interest. That balance may be found if the legal acts and the ECJ case are applied as a one unit. The Keck case had a positive influence on advertising and on the whole free movement of goods. By setting limits of Article 28 it provided MS with the instructions distinguishing which national provisions do not breach EC treaties provisions and which breach, but could be justified with public interest. (Less)
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author
Kupèinskas, Vilius
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
European Affairs
language
English
id
1554796
date added to LUP
2010-03-08 15:22:37
date last changed
2010-03-08 15:22:37
@misc{1554796,
  abstract     = {Free movement of goods is regulated by Article 28 of The EC Treaty. The most important judgments of European Court of Justice (ECJ) in this field are Dassonville, Cassis de Dijon and Keck. The interpretation of Article 28 was very broad in Dassonville and Cassis cases therefore the national rules which were designed for social policy reasons, but not for controlling the trade between Member States (MS), were also challenged. The ECJ in the Keck judgment attempted to define the limits of Article 28. It made a distinction between national rules which fall and which do not under the scope of Article 28. The Article 28 is still being applied for the rules setting requirements for the goods themselves, but it is not applied for ''certain selling arrangements.'' The advertising also falls under the category of ''certain selling arrangements.'' There were many concerns that if Keck formula were applied in a formal way the national provisions restricting advertising could also fall outside of Article 28. ECJ denied these concerns. The post Keck case law proved that advertising could be safeguarded with the Keck formula. ECJ found that national rules concerning ''certain selling arrangements'' could be discriminatory and non-discriminatory. According to ECJ, the discriminatory rules should always fall under the scope of Article 28 and have to be justified by imposing MS. The non discriminatory rules fall only under the scope of Article 28 , if their effect on the intra Community trade is substantial. The Keck formula was able to deal with the situations which occurred in the past. However, some problems might occur in the future due to a fast development of technologies and advertising methods. That is why there is a need to modify this formula. The modified formula should look like this: The national rules which set the requirements for the goods themselves always fall under the scope of Article 28&semic the discriminatory provisions also always fall under the scope of Article 28&semic the non discriminatory provisions fall under the scope of Article 28, only if they can substantially hinder the trade between MS. The restrictions might be justified under Article 30 and the conditions laid down in Cassis case, if they are proportional to the goal which they are seeking. The rules concerning the advertising and the protection of public interest have on been fully harmonized in EC level yet. The case law of ECJ could be the good mean of filling the gaps which occur between national and EC laws. It is possible to find a balance between freedom of advertising and protection of public interest. That balance may be found if the legal acts and the ECJ case are applied as a one unit. The Keck case had a positive influence on advertising and on the whole free movement of goods. By setting limits of Article 28 it provided MS with the instructions distinguishing which national provisions do not breach EC treaties provisions and which breach, but could be justified with public interest.},
  author       = {Kupèinskas, Vilius},
  keyword      = {European Affairs},
  language     = {eng},
  note         = {Student Paper},
  title        = {Do Keck and post Keck cases remove or create obstacles for advertising in EC?},
  year         = {2004},
}