This document consists of notes summarising academics views on the clarity of Article 34 of the Treaty and Functioning of European Union. It consists of summaries of academic articles such as;
- The impact of keck doctrine on free movement of goods- Ioana Luca
- Trailers and jet skis; article 34...
The impact of keck doctrine on free movement of goods- Ioana Luca
through the case of Dassonville' to include any measure which discriminates
between imported products and domestic goods and which makes imported or
exported goods unnecessarily difficult
The Cassis de Dijon' case is an extension to Dassonville. It was shown that those
indistinctly applicable measures could as well breach Article 34 TFEU by their duaL
burden effect, namely requirements operated by the state of origin and those of the
state of importation
is not clear from the rulings Keck of the European Court of Justice whether exception
related to selling-arrangements; nevertheless, it is argued that Keck doctrine has
been applied recently so rarely, that whether Keck is left behind or not would have
little practical effect
ECJ quoted Dassonville test and Article 34 TFEU, followed by Cassis de Dijon case. It
was suggested that when it refers to a selling arrangement Dassonville test does not
apply. By looking back at the case law there are two different strands in the
jurisprudence that can be detected, which influence measures which prevent TFEU.
Cassis determined a market access and discriminatory measures to fall within Article
34 principle of mutual recognition4 , while Dassonville established that any rules
which can hinder to intra-Community trade" are to be regarded as measures having
an equivalent effect quantitative restriction
Although in Keck there is no clear difference between static and dynamic rules, there
is an evident emphasise regarding the equality of selling arrangements in law and in
fact. This approach has proven to be of great significance when deciding on post-
Keck case-law. A number of cases (Hunermund', Banchero, Belgapom', Commission v
Greece' have applied Article 34 TFEU as per Keck judgement on selling
arrangements. By contrast, measures establishing 'requirements to be met' were
determined by rule of reason, as Keck indicated, and were found unjustified
The use of Article 34 introduced in Keck was viewed as praising its 'tendency to cut
back on unnecessary intrusions into the laws of the Member States in cases where
access to the relevant national market is not at stake' and 'lacking in principle'
Roth" argues that Article 34 should be focusing not on confirming commercial
freedom, but promoting interstate trade in goods by ensuring access to the
(national) market
Volker Graf 6, Advocate General indicated that 'selling arrangements are harmless in
internal market terms as a rebuttable presumption rather than as a rule'. There are
areas of difficulty arising from Keck judgement
purpose of the discrimination approach, whether a broader interpretation would
change the value of Keck 'proviso', and where to find the limit between a selling
arrangement and a condition (whether this is the right place for this kind of
boundary), are few of Keck's conflicting matters.
general implications of Keck were hidden by the fact that most of the post-Keck
cases concerned either selling arrangements or product requirement. Nevertheless,
there are some cases related to residual rules (licenses, authorisation, and control)
which somehow acknowledge that the non-discrimination principle sets the limits
for the scope of Article 34 TFEU
approach introduced in Keck gives rise to uncertainty. For instance, the ECJ controls
the scope of the unclear phrase 'certain selling arrangements'. According to the
, consequent case law, the addition of a material in a product in order to increase
sales can be included within the definition of a product requirement. This occurred in
a case concerning the Austrian ban on competitions periodicals or prize draws
(Vereiniggte Familiapress)- Although it was accepted
that introducing such games in the publications, publishers aimed at enhancing the
circulation the ECJ found it not satisfactory enough to bring the Keck rule. The
prohibition was related to the content of a magazine, thus an obligation to be met.
Taking into account that it was an indistinctly applicable measure, it could have been
justifiable under Cassis de Dijon
Advertising is considered to be a problem area. With the development of
'infocommercials' line and television shopping, it became difficult to draw a between
a broadcasting end and a selling arrangement start
It has been argued that advertising falls within the range of 'sellingg arrangement'
rather than 'requirement to be met' as in Leclerc-Siplec case Here the ECJ suggested
that the law that bans television advertising in a specific sector concerns selling
arrangements for the products in that sector
On the contrary, sales promotions which are part of the packaging constitute a
product obligation, as held in Mars case. There is a clear distinction between the
sales promotion advertising that forms a 'selling arrangement' and product
specifications, including packaging. Nevertheless the boundary between the two
situations will not always be easy to identify
Heimdienst3*, Hunermund, Infant Milk, Banchero and TK concerning limitations on
who could sell tobacco, the ECJ has not embraced such an approach. Moreover
Schmidt" adopted the same principle by indicating that the ban on the doorstep sale
of silver jewellery was regarded as a selling arrangement and therefore in
compliance with Article 34 TFEU. Similarly the ECJ held in Hospital Pharmaceutical
Supply case32 that the rules to be met by the pharmacists supplying products to
hospitals, were setling arrangements, although not always applied identically. From
these cases results that the rules concerning limitations as to who may sell particular
products as well as places of sale are considered selling arrangements. By contrast to
Banchero, the ECJ held in Rosengren33 that the Swedish alcohol monopoly, although
seen as a restriction on who can sell alcohol, was classified as a measure having
equivalent effect to quantitative restrictions
Furthermore, it is uncertain whether having no direct link with the product conten
itself, the rules should not have been regarded as a product requirement. Moreover
the border line between production and retail is not clearly defined in these cases.
Here the rules do not require a change in the nature of the product itself
As a result, Alfa Vita is seen as a contradiction of the Keck selling arrangement
'exception'- these concerned town planning rules related to construction limitations
on bakeries and the machineries used affecting shops' baking. Although the rule was
applicable not to the bread itself but to the place where such bread was sold, the ECJ
regarded it as a product requirement. The reasoning provided for this decision
seems to be similar with the one indicated in Schwarz and Morellato regarding the
impact of the rule, which was found to be located in the production process.
Although other cases concerning planning or licensing rules did not influence the
process of producing, these current cases indicated that the process of production of
, the product is affected by the rules. It is a matter of considerable debate whether
this reasoning is convincing or not
It is not obvious to what extend the Keck selling arrangements are to be applied
equally in law and in fact. This point has been raised in De Agostini'6 where the
prohibition applied to all adverts, whether imported or not, hence it operated
equally in law
Burmanjer and Ors the ECJ has appointed the national courts to assess the equal
application in fact. By contrast to these cases, Scutzverband gegen unlauteren
Wettbewerb v TK-Heimdienst Sass GmbH" is an illustration of the assessment of the
equal operation of the selling arrangement in law and fact by ECJ itself
the actual boundary of discrimination is still uncertainly placed. Karner43, a case
concerning Austrian prohibition on deceptive advertising with regards to the auction
sale of goods, was regarded contrary to deAgostini as the national condition was not
seen as a total prohibition on all types of advertising. In Karner as well as Dynamic
Medien Vertriebs GmbH v Avides Media AG4 it was accepted that the prohibition in
question may be affecting the total number of sales
Over the years a number of alternative solutions to Keck have been suggested. On
the one hand, the ECJ has favoured an approach related to the impact of a measure.
In DocMorris, the focus was on easing the access to market by assessing whether the
selling arrangement applies equally in fact
These judgements are mostly closed to Keck approach, as they differentiated
between measures which have an impact on consumers and those which impact
directly the importer/producer and therefore an indirect impact arises on the free
movement of goods rights.
There was insufficient assistance from the ECJ's consequent case law with regards to
the measures which prevent market access, the content of the first limb in Keck
The case of Commission v Italy concerned Italian rule that trailers could only be
towed by ,motor vehicles", prohibiting the towing of trailers by motorcycles,
mopeds, tricycles and quadricycles. While Advocate General (AG) Leger delivered his
Opinion14 concentrating only on Dassonville formula, AG Bot ruling concerned a
critical analysis of Keck judgement which, in his opinion, should not be extended to
rules related to product use. Specifically, it made clear his preference for a market
access formula and his dislike for the Keck differentiation between selling
arrangements and product requirements- AG Bot suggested that the Keck test
extended to measures regulating the use of goods would undermine the scope of
Article 34 TFEU and go against the internal market objectives 'It would once more
make it possible for Member States to legislate in areas which, on the contrary, the
legislature wished to 'communitarise
In order to answer whether Keck is a test of the past, the meaning of ,market access"
should be clearly defined, by firstly clarifying whether this concept could clearly
defined the boundaries of Article 34 TFEU or whether is an open notion which
encompasses most rules. The above mentioned rulings clarified what was actually
evident from the former case
The Court of Justice has adopted a strict market access replaced or strictly limited
the Keck doctrine, where the concept of test which ultimately market access defines
the scope of Article 34 TFEU and in effect replaces Dassonville formula
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