CJEU decisions on TFEU Article 34 in Keck

Court of Justice of the European Union (CJEU) decisions on Treaty on the Functioning of the European Union (TFEU) Article 34 in Kec – Example European Law Essay

Question

The CJEU’s reasoning – although not the result – in Keck is unsatisfactory for two reasons. First, it is inappropriate to make rigid distinctions between different categories of rules, and to apply different tests depending on the category to which particular rules belong. Secondly, the exclusion from the scope of Article [34 TFEU] of measures which “affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States” amounts to introducing, in relation to restrictions on selling arrangements, a test of discrimination. That test, however, seems inappropriate.

Answer

Introduction

Article 34 of the Treaty on the Functioning of the European Union (TFEU), implemented to serve the EU’s main goal of opening up markets to intra-community trade between member states and abolishing trade barriers by prohibiting “all quantitative restrictions on imports and all measures having equivalent effect”¹ between Member States, has created a lot of controversy during the past years. The Keck decision², which attempted to interpret article 34 TFEU, has definitely played an important –If not critical- role in the evolution of case-law on this issue, but also has contributed in the intensification of the aforementioned controversy. In the following chapters, we will explore the background of the case-law leading to the Keck decision as well as each of the two reasons for which the reasoning of the Keck decision is deemed unsatisfactory, as per the quote given.

The case-law leading to Keck

As implied before, Keck is third in a row of three Court of Justice of the European Union (CJEU)CJEU decisions, all dealing with the interpretation of Article 34 TFEU. These decisions are, in chronological order, Case C-8/74 Procureur du Roi v Benoit and Gustave Dassonville (from now on “Dassonville”)Dassonville³ and Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (from now on “Cassis de Dijon”) Cassis de Dijon⁴.

Article 34 TFEU covers measures that are both distinctly and indistinctly applicable: that is, measures that discriminate directly between domestic and foreign productsand those that even though are equally applied to both domestic and foreign products, have the effect of favouring the former as against the latter⁵.

The first of the aforementioned two cases, Dassonville, attempted to clarify the meaning of “measures having an equivalent effect” to quantitative restrictions on imports. In this case, the Court said that “All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as measures having an effect equivalent to quantitative restrictions”.⁶ The “Dassonville formula”, as is called, gave a wide⁷ definition of “measures having equivalent effect to quantitative restrictions”⁸, since a discriminatory intent did not need to be identified⁹.

Dassonville served as the legal basis for the decision in Cassis de Dijon. In the latter, the Court reaffirmed the application of Article 34 also to indistinctly applicable measures that have the effect of a quantitative restriction to imports since, as the Court emphasised, obstacles to free movement could result from “disparities” between the different national laws of each member state.  These disparities could result in placing a disadvantage on products that had to comply with different standards in the country of production and the country of export¹⁰. Therefore, measures of this sort that lay down product requirements relating to goods’ production or designing stage(dual burden rules) would be considered to fall under the ambit of Article 34. On the other hand, measures relevant to the marketing of the products (equal burden rules) would not be covered by Article 34, albeit under the condition that they can be justified under one of the mandatory requirements envisaged in the same decision (i.e. public health, fairness of commercial transactions, defence of the consumer)¹¹.

This wide interpretation of Article 34 and equal burden rules given in the Cassis de Dijon case, is what the Keck decision aimed to rectify. This was mostly due to the fact that after Cassis de Dijon, several other cases that tried to use its “formula” ended up with discrepancies after its application and thus, concerns were raised as to the breadth of the test and its subsequent possible abuse by traders to promote their own commercial freedom.¹²

The Keck decision

As stated in the previous chapter, the Keck decision sought to narrow the scope of the previously wide interpretation given to equal burden rules in the Cassis case. The case dealt with criminal proceedings brought by the French government against Keck and Mithouard, on the basis that the latter were reselling products in an unaltered state at prices lower than their purchase price, something that is prohibited by French law.

The distinction between “product” related measures and “selling arrangements”

Essentially, the Keck decision drew a line between what it said were “product rules”, ie those relating to designation, form, size, weight, composition, presentation, labeling, packaging – which would be prohibited under article 34 TFEU, and “selling arrangements” which were considered not to be caught by the ambit of the article. The usefulness or even the legitimacy of this distinction has been a long-debated issue that is best portrayed through case-law that made reference to and applied the Keck distinction¹³. Notwithstanding the numerous successful occasions of application of the distinction¹⁴, problems were specifically witnessed in occasions when a rule was neither strictly a “product rule” nor a “selling arrangement”. The most significant instances on which the Keck “test” proved to be inadequate, was in the cases of Morellato v Comune di Padova (from now on “Morellato) Morellato¹⁵ and Alfa Vita Vassilopoulos AE v Elliniko Dimosio (from now on “Alfavita”)Alfavita¹⁶. Both of these cases revolved around rules concerning partially-baked bread.

The Morellato case revolved around a rule, the requirement of which was that already prepared and partially baked bread needing a prior-to-sale final baking stage, had to be packaged and labeled before sale. The Court decided that not only was this not a case of a selling arrangement (as in this case the contested rule concerned a prior-to-sale stage), but also that there was no breach of Article 34 TFEU, since the rule-in-question was not a product rule, as the substance of the good would not have to be altered.

In the Alfavita case, concerning a rule that required for the aforementioned type of bread to be prepared in specific traditional bread-making facilities, the Court decided that the rule fell outside the ambit of Article 34 TFEU, since, as it said, this was not a product rule¹⁷. What the Court neglected to mention and analyse, however, was the fact that this restriction had an immediate impact on the selling of the product, as it restricted it to a specific environment, thus equating it to a “selling arrangement”.

It is evident that the Keck distinction is –to a certain extent- problematic. “Rigid” categories are often hard to formulate when it comes to real-life legal cases. Keck faced a lot of criticism from Advocates General¹⁸ in subsequent cases. However, that does not mean that the Keck test is a failure, nor that it is extensively flawed.

What is important about the Keck decision is that the distinctions it has made, have been construed based on conclusions concerning the effect of the rules and this is not something negligible¹⁹. Even AG Jacobs, to whom the quote of the essay title belongs to, in Leclerc-Siplec²⁰ could not formulate a better test that would serve as a better alternative to the Keck distinction.

The inappropriateness of the “test of discrimination” regarding selling arrangements

The Keck decision states essentially that if provisions regarding selling arrangements “affect in the same manner, in law or in fact, the marketing of domestic products and those of other Member States”²¹, then these should not be caught by Article 34.

What has created a lot of issues here, is the addition of the phrase “in fact”:it signifies a wider test of indirect discrimination with regards to selling arrangements.

The question regarding the appropriateness of the test is a difficult one. Advocate AG Jacobs said in his Opinion in Leclerc-Siplec that discrimination is not a helpful criterion, since the fact that a member state imposes the same restrictions on the marketing of domestic products as it does to that of foreign products, is irrelevant: “the adverse effect on the Community market is in no way alleviated”²². AG Jacobs stated in the same case that selling arrangements can and will have an effect on intra-community trade and underlined the fact that the differentiation between selling arrangements and product rules is not premised on substance, but is mostly a matter of degree.

To that end, and based on these problems as identified by AG Jacobs, he went on to propose an alternative test, briefly mentioned in the previous sub-chapter. That test was the “substantial market restriction” test, according to which a de minimis approach should be introduced and applied. Even though AG Jacob’s approach found acceptance in a big part of the academic world²³, however, it also met strong hostility²⁴.  The basic idea was that this test does not satisfy the legal certainty of a “rules-based” test²⁵.Finally, it was even supported that the market access test can have dangerous implications as to its limits, suggesting that even “extreme limits on opening hours may well substantially hinder access to the market and so breach article 34”²⁶.

Conclusions

What AG Jacobs suggested in the title quote, is not wrong. In fact, as explained above, his argumentation has its merits and can definitely find fertile ground on which to expand. However, the usefulness of the Keck test in a majority of cases accompanied by the failure of finding a new formula which would face less criticism than the “market access” test as proposed by AG Jacobs in Leclerc-Siplec, suggest that the decision and reasoning of the Keck case have contributed positively to the steady development of the CJEU’s case-law in the area of Article 34.

Footnotes

¹Article 34 TFEU

²Criminal Proceedings against Bernard Keck and Daniel Mitouard, Joined Cases C-267/91 and C-268/91, ECR 1993, p I-06097, from now on Keck

³Procureur du Roi v Benoit and Gustave Dassonville Case C-8/74, ECR 1974 p 837, from now on Dassonville

⁴Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein Case 120/78, ECR 1979 p 649, from now on, Cassis de Dijon

⁵More on the general theory on Article 34 TFEU, see Elspeth Berry, Matthew J Homewood and Barbara Bogusz, EU Law, Oxford University Press, 2013, p 357-369

⁶Procureur du Roi v Benoit and Gustave Dassonville Case C-8/74, ECR 1974 p 837, at para 5

⁷See further on this Margot Horspool, Matthew Humphreys (2008), European Union Law (5th Edition), Oxford University Press, pp 316-317

⁸Article 34 TFEU

⁹Christopher Hilso, “Discrimination in Community free movement law”, E.L.Rev. 1999, 24(5), 445-462, null

¹⁰Damian Chalmers, Free Movement of goods within the European Community: an unhealthy addiction to Scotch Whiskey?, I.C.L.Q. 1993, 42(2), 269-294, particularly 280-283

¹¹Ibid, at 278-279

¹²Damian Chalmers “Repackaging the internal market – the ramifications of the Keck Judgment”, E.L.Rev. 1994, 19(4), 385-403, at 390

¹³Ioannis Lianos, “In Memoriam Keck: the reformation of the EU law on the free movement of goods”, E.L.Rev 2015, 40(2), 225-248

¹⁴For example, in the cases of DinamicMeridien(Case C-244/06, 2008, ECR I-505) or Familiapress (Case C-368/95, 1997, I-3689)

¹⁵Morellato v Comune di Padova, C-416/00, 2003, ECR I-9343, from now on Morellato

¹⁶Alfa Vita Vassilopoulos AE v Elliniko Dimosio Joined Cases C-158/04 and C-159/04, 2006, ECR I-1621, from now on Alfavita

¹⁷Alfa Vita Vassilopoulos AE v Elliniko Dimosio Joined Cases C-158/04 and C-159/04, 2006, ECR I-1621, at paras 17-19 and 28

¹⁸AG Jacobs in Leclerc-Siplec Case C-412/93, 1995, ECR I-179and AG Maduroin Alfavita Joined Cases C-158/04 and C-159/04, 2006, ECR I-1621

¹⁹See for example, Kovacs who supported the decision in Robert Kovar “Dassonville, Keck et les autres: de la mesureavanttoute chose” 2006, 2 RTDE 213

²⁰Leclerc-Siplec Case C-412/93, 1995, ECR I-179

²¹Criminal Proceedings against Bernard Keck and Daniel Mitouard, Joined Cases C-267/91 and C-268/91, ECR 1993, p I-06097, at para 16

²²AG Jacobs in Case C-412/93 Societe d’importation Edouard Leclerc-Siplec v TFI Publicite SA (1995) ECR I-179 at para 40

²³R. Gormley “Reasoning Renounced? The remarkable Judgement in Keck and Mitouard” 1994, EBLRev 63

²⁴J Snell, “The notion of market access: A Concept or a Slogan?”, 2010, 47 Common Market Law Review 437

²⁵Peter Oliver, Oliver on Free Movement of Goods in the European Union, (5th edn , Hart Publishing, 2010)

²⁶Peter Oliver, Oliver on Free Movement of Goods in the European Union, (5th edn , Hart Publishing, 2010)