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LAWS08125 EU Law-Substantive Law – Free Movement of Goods
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Substantive Law – Free Movement of GoodsFormative EU Law assessment –
a. At para 38 Lord Doherty relates that the respondents accept that the measures at issue fall
within the Dassonville test, and so Keck reasoning does not apply. Do they?
The central case that Lord Doherty is referring to is Procureur du Roi v Dassonville [1974]. The issue at
stake was that a French importer, (Dassonville was importing whiskey to Belgium and had forged a
certificate, required by Belgian law to legally label a product as ‘Scotch Whiskey’. As a result, the Court of
Justice was required to ascertain whether Article 34 of the TFEU required this labelling and whether such
a requirement was competent. Thus the court rules that all trade regulations that may hinder intra-
community trade are considered as measures having an effect equivalent to quantitative restrictions 1.
This judgement accurately encapsulates the definition of equivalent effect with regard to a qualitative
restriction.
Keck reasoning similarly relates to Quantitative restrictions and is derived from the case of Keck v
Milthouard. The fundamental difference here is that arrangements need not hinder trade between
Member States so long as these provisions apply to affected traders operating within the national
territory the same way2. Thus provisions may not necessarily be contradictory to EU Law if they
discriminate between the marketing of domestic products and of those from other member states.
The dicta from these two cases can be applied to the Scotch Whisky Assn and others case. This case
relates to The Alcohol (Minimum Pricing) (Scotland) Act 2012 (hereafter referred to as the 2014 Act)
which aims to raise the price of alcohol in licensed areas, based on the strength of the alcoholic
beverage. This applies to alcohol within and from outside the Member State. It can be argued, the
Dassonville test applies because an increase in the price of a good will reduce is competitiveness in a
market, thus having the same effect as a quantitative restriction. This falls under the category of
“hindering intra community trade”, as established in Procureur du Roi v Dassonville. Hence, as this test is
relevant to this case, it can be argued that the 2012 Act is contradictory to EU Law, thus ultra vires.
Conversely, the reasoning from the Keck can be applied to the Scotch Whiskey Assn and others case to
demonstrate there was no breach in EU Law. It is important to note, the provisions of the 2012 Act do
not expressly state that the measure is reserved solely for alcoholic products of a specific origin. In fact it
is an Act intended to decrease consumption of all alcoholic products, rather than increasing
consumption of domestically produced beverages. Hence, such provisions of the 2012 Act has the
1
Case 8/74 Procureur du Roi v Dassonville
2
Case C-267-68/91 Criminal Proceedings against Keck v Mithouard
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