Lecture Notes: The Keck Case and Free Movement of Goods

Overview

• The lecture discusses the unique ruling in the Keck case by the European Court of Justice.
• Previous court decisions often found measures to be of "equivalent effect" and allowed member-states to justify them.
• Keck case marked a shift in interpretation regarding "equivalent effect" in trade laws.

The Keck Case

• Background:

  • Mr. Keck and Mr. Mithouard were supermarket managers in France.
  • Prosecuted for selling goods (beer and coffee) below cost price, a criminal offense in France.
  • Their defense argued it was a "measure of equivalent effect."

• Court Decision:

  • The court ruled this was not a measure of equivalent effect.
  • Introduced the concept of "certain selling arrangements."
  • Such arrangements, if they apply equally to all traders (foreign and domestic) and in law and fact, are not seen as hindering trade.

Significant Outcome

• Paragraph 16 Test:

  • Two conditions for "certain selling arrangements":
    1. Applies to all traders equally in law and fact.
    2. Impact of the rule is equal.
  • If conditions are met, the measure isn't considered to hinder trade.

• Revolutionary Change:

  • Departed from the broad definition of "measures with equivalent effect" from previous cases like Dassonville.
  • Provided a generic exception to the rule.

Challenges and Problems

• Definition Issues:

  • No clear definition of "certain selling arrangements."
  • Based on descriptions from case law, relates to circumstances of sale (e.g., how, where, by whom, when a product is sold).

• Implications:

  • If conditions are not met, the measure still qualifies as a measure having equivalent effect and needs justification.
  • Uncertainty around assessing whether a measure fulfills the conditions.
  • Impact on imported products can complicate assessments.

Recap

• Wide Definition:

  • Measures having equivalent effect include any trading rule that hinders trade among member states.
  • Covers product requirements and market access impeding rules.

• Exceptions:

  • Certain selling arrangements that meet Paragraph 16 criteria aren't measures of equivalent effect.
  • Further details on justifications will be covered in subsequent discussions.

Upcoming Discussion

• The next lecture will focus on justifications for measures with equivalent effect.