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

States and was subject to national selling arrangement rules. Instead, the Italian andSwedish rules prevented the producer from having a real opportunity to put the product onthe market of a Member State in the first place. The category of certain sellingarrangements is thus not useful in this context. 51Instead of using the <strong>Keck</strong>-criteria, I suggest that both cases have to be interpreted in thelight of the original meaning of Art 34 TFEU and the Cassis principle of mutualrecognition. First, the total ban of the sale of a product – or the restriction of its use, whichhas the same effect – comes much closer to the original meaning of Art 34 TFEU as aquantitative import restriction than many cases concerning product requirements, forexample, package requirements. If measures that merely require the adaptation of aproduct constitute restrictions, then surely measures having the effect of banning the saleof a product must also be regarded as restrictions. According to the Cassis principle aMember State has to recognise a product that has been lawfully produced in anotherMember State. This also means that the Member State is prohibited from banning the saleof such a product or restricting its use in a way that equals a ban. The producing MemberState is, in principle, the sole regulator of the lawfulness of a product. This is because thelawfulness belongs to the production stage of a product, as do other regulations aboutproduct requirements. This is also true for a restriction on use which equals an economicban of the sale of the product because, in effect, it also concerns the lawfulness of the51See <strong>Case</strong> C-110/05, Commission v. Italy (trailers), [2009] ECR I-519, paras. 41-42 and <strong>Case</strong> C-142/05,Mickelsson and Roos, [2009] ECR I-4273, paras. 25-27.16