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

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2. Market Access Test2.1 Notion of Market AccessThe notion of market access used in the two recent decisions is not new, but has been usedbefore in different contexts. However, the meaning of market access is far from clear. 37(a) Academic DiscussionMarket access has been used by several authorities as an element to develop a newrestriction test regime. 38 Most prominently, this new test regime is also used to create aunified restriction approach among all four market freedoms. 39 I will only discuss two ofthose suggestions in this context. In his famous opinion in Leclerc-Siplec, A.G. Jacobs hassuggested the introduction of a general non-discriminatory market access test as areplacement of the <strong>Keck</strong>-approach. He argued that an obstacle to inter-State trade cannotcease to exist simply because an identical obstacle affects domestic trade. The underlyingprinciple to the market freedoms is that all undertakings should have unfettered access tothe whole of the Union market. According to A.G. Jacobs the most obvious solution for an37See Horsley, “Anyone for <strong>Keck</strong>?”, 46 CML Rev. (2009), 2001, at 2014.38This has been the case to different extents. Compare for example Weatherill, “After <strong>Keck</strong>: SomeThoughts on how to Clarify the Clarification”, 33 CML Rev. (1996), 885, at 896 ff; Barnard, “Fittingthe Remaining Pieces into the Goods and Persons Jigsaw” 26(1) EL Rev. (2001), 35, at 52 ff; Shuibhne,“The Free Movement of Goods and Article 28 EC: An Evolving Framework”, 27(4) EL Rev. (2002),408, at 413 ff; Prete, “Of Motorcycle Trailers and Personal Watercrafts: the Battle over <strong>Keck</strong>”, 35(2)LIEI (2008), 133, at 155; Spaventa, 34 EL Rev. (2009) 923 ff.39See recently Spaventa, 34 EL Rev. (2009) 929.10
appropriate restriction test is therefore based on the extent to which a measure hinderstrade between Member States by restricting market access. In case of a substantialrestriction on that access (de minimis test), the measure establishes a restriction in thesense of Art 34 TFEU. 40 In his opinion in Alfa Vita 41 , A.G. Maduro also referred to marketaccess in trying to define a general harmonised restriction approach on the freedoms ofmovement. Contrary to A.G. Jacobs, A.G. Maduro focused on the discriminatory elementof a measure. In his analysis, he defined three principal criteria found in the case law thatidentify discrimination against the exercise of freedom of movement and thus establish arestriction. First, any direct or indirect discrimination based on nationality is prohibited.Second, the imposition of supplementary costs on goods in circulation in the Union or ontraders carrying out a cross-border activity creates a barrier to trade. However, such costsonly constitute a restriction if they do not take into account the particular situation ofimported products, i.e. that they already had to comply with the rules of their State oforigin. Third, any measure which impedes to a greater extent the access to the market andthe putting into circulation of products from other Member States is considered to be ameasure having equivalent effect. According to A.G. Maduro, the application of thesethree criteria appears to be necessary and sufficient to decide, in every case and for allkinds of rules, whether there exists a barrier to trade.40See Opinion of A.G. Jacobs in <strong>Case</strong> C-412/93, Leclerc-Siplec, [1995] ECR I-179.41Joined <strong>Case</strong>s C-158 & 159/04, Alfa Vita Vassilopoulos, [2006] ECR I-8135.11
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 and 10: in academic literature. 22 These de
Page 11: find a breach of Art 34 TFEU. Altho
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
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outside the scope of Art 56 TFEU. T
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• Case C-169/91,
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• Joined Cases C
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Media, [2008] ECR I-5785• <strong
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• M. P. Maduro, “The Saga of Ar
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Case Notes• G. C
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Written work that has been submitte
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