Free Movement of Goods – Revision
Issues:
• Evolution of case law and the extension of the scope of Article 34 TFEU.
Article 34 TFEU authoritatively states that ‘quantitative restrictions on imports and all measures having equivalent
effect shall be prohibited between Member States.’
• Crucially, it is a fundamental necessity that judicial interpretation of the scope of Article 34, which has
significant institutional, economic and substantive implications, acknowledges ‘the economic complexity of
the internal market’.
Concerningly, the Keck distinction is ‘too static’ to accommodate for ‘economic complexity’ within the market, as it
entirely disregards residual rules concerning the ‘use’ of goods, which are neither product or selling arrangements
and erroneously presupposes that product requirements are inevitably more economically demanding than selling
arrangements, overlooking the economic reality and thus ‘complexity’ of the ‘internal market’.
• Nonetheless, Keck advantageously constrains excessive European intervention and establishes significant
legal certainty.
In contradistinction, the ruling in Scotch Whisky produces considerable uncertainty and mistakenly conceptualises
Article 34 as a mechanism to ensuring economic liberalisation, which is both insensitive to Member-state
autonomy and ‘the economic complexity’ of the market.
Alternatively, the implementation of a de-minimis criterion to ‘market access’ will advantageously counteract such
extensive judicial intervention and necessitate judicial consideration of the economic reality, and thus ‘complexity’
of the internal-market.
ADVANTAGES OF KECK: The Keck distinction provides some significant advantages to the regulation of
the Free Movement of Goods
• Crucially, the Keck distinction significantly constrains European intervention within the internal market,
thereby advantageously protecting national regulatory-autonomy and establishing theoretical legal
certainty. Thus, the notion that overruling Keck is ‘for good reason’ is, to an extent, unpersuasive.
• Keck establishes that product requirements are subject to cassis rules (all product requirements are
prohibited – indistinctly or distinctly applicable rules)- mutual recognise of other MS’s rules.
• Dassonville discrimination applies to selling arrangements – MS’s can impose their own regulations, as
long as these rules apply equally in fact and in law.
Refines the extensively broad case law before (Dassonville and Cassis):
• Firstly, Keck is significantly more restrictive than the case law before it, and therefore constrains the ECJ’s
intervention into national affairs/consideration of national measures – so whilst it isn’t a perfect rule, it was
necessary at the time.
- Keck was fundamentally necessary to amend to conceptual and practical mistakes the ECJ had
previously made.
• The ECJ in Dassonville, established an incredibly expansive interpretation, claiming an MEQR constitutes
‘all measures which are capable of hindering, directly or indirectly, actually or potentially, intra-community
trade’.
- Arguably, Dassonville omits to reflect the anti-protectionist purpose of Article 34 TFEU
- Regan → argues that Dassonville should have never been used since it offers an interpretation of
Article 34, which does not fit the text of the Article, nor the intention of the treaty authority.
- As persuasively proposed by Wilsher (2008) → Dassonville ‘would have been far too restrictive…for
the development of the single market’.
• Moreover, the judgement of Cassis as observed by Chalmers (2015) → demonstrates the ECJ interpreting
Article 34 to encompass indistinctly applicable measures which merely ‘reduce trade or economic activity
- Chalmers → argues that this is the most de-regulatory judgement in the history of the world in that
thousands of MS legislation became automatically invalidated and national autonomy was
fundamentally undermined.
- Wilsher → “The Cassis line of cases is in fact conspicuous for its total lack of analysis of product
markets.”
- Wilsher → “The Cassis approach, by contrast, allows the European Court, in a single decision, to cut
through swathes of regulation affecting a whole sector, such as alcoholic drinks.”
• Keck was the ECJ’s attempt to, as stated in Rewe-Zentral C-120/78 → ‘re-examine and clarify its case
law…in view of the increasing tendency to invoke Article 34…to challenge any rules whose effect is to limit
their commercial freedom’ – which was too far-reaching and broad.
, • Therefore, as persuasively argued by Dunne (2018)→ ‘given that the free movement provisions are not
intended to result in a ‘market without rules’, the CJEU in Keck made a necessary distinction’, which crucially
maintains a delicate institutional balance between EU intervention and MS autonomy.
Recognises the sensitive nature of selling arrangements:
• Furthermore, the distinction in Keck recognises that the test of regulatory equivalence is entirely
inapplicable to selling arrangements, because of the intrinsically sensitive nature of selling arrangements.
• This is recognised by Wilsher (2008) → who claims, ‘selling rules of the host state are the embodiment of
its regulatory choices for its population’, often enforcing nationally sensitive cultural and social practices.
• This is demonstrated by Torfaen v B&Q → Sunday trading case and Cinetheque (C-61/84)
• Alternatively, as Wilsher (2008) recognises → ‘marketing rules are often an end in themselves’ and are
much less controversial.
- “The host state typically believes the marketing activity in question is damaging to some aspect of
cultural or social life.
- “home state regulation’ – permitted under Cassis ‘does not provide the same protection for the host
state's values. Furthermore, unlike product rules, labelling is often not going to meet the regulatory
objective.”
- “in Keck the Court rightly recognised that the Cassis test of regulatory equivalence is misplaced in the
context of selling arrangements.”
Keck provides for legal certainty:
• Moreover, the Keck distinction crucially provides significant legal certainty and ease, not only to economic
actors but also to national courts and policy-makers within the internal market. This is because the Keck
distinction, clearly outlines which measures constitute an MEQR (discriminatory selling arrangements and
product requirements) – people are explicitly aware of what is permitted and what is not.
- So Keck provides legal certainty to National courts, administrators – very neat, distinct requirement.
• This is appreciated by Chalmers (2015) → who argues that Kecks ‘apparent clarity and ease of use are
among the major reasons for its reliance’ and attraction – rule-based approach.
Premised upon economic logic:
• Keck provides for the single regulation for all domestic and foreign products. This is because the products
do not have to adapt to each Member States’ distinct product requirements (there is no dual burden), which
can create a significant competitive disadvantage’s – which permits greater efficiency and productivity.
• Weatherill and Beaumont → argue that the distinction is premised upon the difference between equal and
dual burdens on importers, whereby product requirements impose a dual burden and thus must be more
restrictively prohibited, whereas selling arrangements merely enforce equal burdens such that the rule does
not have to be as strict.
- Therefore, the distinction operates to remove competitive disadvantages and enables greater practical
efficiency.
A Fundamental problem with the Keck distinction is that it is too static to deal with the economic complexity
of the internal market.
• To an extent, the legal certainty permitted by Keck has subsequently meant that the test is simultaneously
too rigid/inflexible to accommodate for the economic realities of the internal market – such that the
distinction is economically arbitrary.
- Consideration of the Free Movement of Goods in an excessively structural and formulistic way does
not sufficiently contextualise the economic circumstances of the case and thus realities.
• The ECJ held in Keck, that the Cassis rule applied to distinctly or indistinctly applicable product
requirements. Whilst, alternatively, indistinctly applicable selling arrangements were conclusively deemed
to be outside of the scope of Article 34 TFEU, and only discriminatory rules on selling arrangements are
caught.
• Weatherill and Beaumont → argue that the distinction is premised upon the difference between equal and
dual burdens on importers, whereby product requirements impose a dual burden and thus must be more
restrictively prohibited, whereas selling arrangements merely enforce equal burdens such that the rule does
not have to be as strict.
- Therefore, the distinction operates to remove competitive disadvantages and enables greater practical
efficiency.
The economic justification behind Keck is fundamentally flawed:
• Nonetheless, this erroneously assumes that product requirements are invariably/inevitably more
economically demanding than selling arrangements.
• Wilsher (2008) → This is problematic, because as Wilsher observes, the courts ‘almost never seek’ to
prove this justificaiton ‘by reference to empirical evidence’ or the realities of ‘product markets’.
