(post) Keck Case Law on the Freedom to Provide Services

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ules on product requirements which have to be recognised by the importing State (whichhad already been decided in Cassis), the importing State has in general the sole regulatorycompetence regarding certain selling arrangements provided that they do not discriminateproducts from other Member States in law or in fact. 26 With the decisions in Cassis and<strong>Keck</strong> and the creation of mandatory requirements, the Court established a complexframework for the split in competence between the home State and the host State. 27Even though the <strong>Keck</strong>-decision was much criticised, 28 the court nevertheless continuouslyapplied the established distinction between product requirements and certain sellingarrangements in later cases. 29 It ruled, for example, that there was no breach of Art 34TFEU in cases of time limitations to the sale of goods 30 or the provision that certainproducts can be sold only by licensed retailers 31 . Nevertheless, if the selling arrangementis either discriminatory (in fact) 32 or capable of imposing a double burden 33 , the Court will26Compare Bernard in Barnard/Scott, p. 105.27Compare Weatherill in Barnard/Scott, p. 43.28See for example Maduro, “<strong>Keck</strong>: The End? The Beginning of the End? Or Just the End of theBeginning?”, 3 IJEL (1994), 30.29See Commission`s Guide to the Free Movement of Goods, SEC(2009) 673 final, at pp. 14 ff.30Joined <strong>Case</strong>s C-401 & 402/92, Tankstation 't Heukske, [1994] ECR I-2199.31<strong>Case</strong> C-391/92, Commission v. Greece (Greek milk), [1995] ECR I-1621; <strong>Case</strong> C-387/93, Banchero,[1995] ECR I-4663.32For example <strong>Case</strong>s C-322/01, DocMorris, [2003] ECR I-14887 and C-254/98, TK-Heimdienst, [2000]ECR I-151.33See <strong>Case</strong>s C-368/95, Familiapress, [1997] ECR I-3689 and C-470/93, Mars, [1995] ECR I-1923; tothat see Maduro in Andenas/Roth, pp. 55 f.8
find a breach of Art 34 TFEU. Although the distinction has its shortcomings, especiallybecause certain measures, such as advertisement regulations, cannot be put in one of thetwo categories, the Court has continually and successfully applied the <strong>Keck</strong> frameworkuntil today. 34However, in addition to the distinction between product requirements and certain sellingarrangements, the rather elusive notion of “market access” and “market access test” hasplayed a more and more prominent part in the academic discussion and in the Court’s caselaw. Two recent cases – Commission v. Italy (trailers) 35 and Mickelsson and Roos 36 – havegiven again cause to argue that the Court has put the focus back on a purely nondiscriminatorymarket access approach. I will now first analyse the notion of marketaccess and then address the question of whether a market access test fulfils a separatefunction beside the distinction between product requirements and certain sellingarrangements. I contend that the case law on market access can be traced back to the sameprinciples that underlie the <strong>Keck</strong>-case law, being non-discrimination and mutualrecognition, and that there is thus no need for a restriction test based on market access.34Oliver/Enchelmaier, “Free Movement of Goods – Recent Developments in the <strong>Case</strong> <strong>Law</strong>”, 44 CMLRev. (2007), 649, at 704.35<strong>Case</strong> C-110/05, Commission v. Italy (trailers), [2009] ECR I-519.36<strong>Case</strong> C-142/05, Mickelsson and Roos, [2009] ECR I-4273.9
Page 1 and 2: The Influence of the (post<
Page 3 and 4: A. IntroductionRestrictions of the
Page 5 and 6: criteria. Finally, it will be demon
Page 7 and 8: mandatory requirements, also known
Page 9: in academic literature. 22 These de
Page 13 and 14: appropriate restriction test is the
Page 15 and 16: products. Consumers were more likel
Page 17 and 18: principle of mutual recognition est
Page 19 and 20: product. However, this argument is
Page 21 and 22: to the Court those are: first, meas
Page 23 and 24: context of very specific use restri
Page 25 and 26: that the Court followed a de minimi
Page 27 and 28: encourage the unhindered pursuit of
Page 29 and 30: At first sight, it seems that the C
Page 31 and 32: understood. It includes lotteries 8
Page 33 and 34: meaning of the case law is not enti
Page 35 and 36: A.G. Jacobs in his opinion in Säge
Page 37 and 38: In its case law 112 the Court clari
Page 39 and 40: As already shown above, the Court f
Page 41 and 42: establishment does so even more. 12
Page 43 and 44: itself. 135 This equals a product r
Page 45 and 46: services. 141With regard to service
Page 47 and 48: 3.1 Service RequirementsAdditional
Page 49 and 50: equivalent to “certain selling ar
Page 51 and 52: of goods, it will also have to limi
Page 53 and 54: marketing method, because it only a
Page 55 and 56: selling arrangements. 173In Delièg
Page 57 and 58: Directive. 180 Art 4 (1) of the Dir
Page 59 and 60: services will face similar difficul
Page 61 and 62:
However, such difficulties in findi
Page 63 and 64:
outside the scope of Art 56 TFEU. T
Page 65 and 66:
• Case C-169/91,
Page 67 and 68:
• Joined Cases C
Page 69 and 70:
Media, [2008] ECR I-5785• <strong
Page 71 and 72:
• M. P. Maduro, “The Saga of Ar
Page 73 and 74:
Case Notes• G. C
Page 75:
Written work that has been submitte
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