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

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34 TFEU because it discriminates against foreign producers or does not recognise aproduct lawfully produced in another Member State. Thus, the recent judgments cannot beused as a basis to challenge any national provision merely hindering market access.(c) Use of the Term “hinder”Another argument for the consistency of the recent decisions with established case law isthat the Court seems to use the term “hindrance” not in the sense of the Dassonvilleformulabut in the enhanced meaning of <strong>Keck</strong>. In Commission v. Italy (trailers) the Courtstated that the settled case law reflects the obligation to respect the principles of nondiscrimination,of mutual recognition and the principle of ensuring free access of Unionproducts to national markets. 80 According to those principles, product requirementsconstitute measures having equivalent effect because they hinder market access. Contraryto this, the application of certain selling arrangements is not as such to hinder intra-Uniontrade, provided that it does not inherently prevent market access or impede access ofimported products to a greater extent than domestic ones. 81 Consequentially,discriminatory measures, non-discriminatory product requirements and any other measurewhich hinders market access of products originating in other Member States are coveredby the concept of Art 34 TFEU. 8280<strong>Case</strong> C-110/05, Commission v. Italy (trailers), [2009] ECR I-519, para 34.81Ibid., paras. 35 f.82Ibid., para 37.26
At first sight, it seems that the Court adds a third principle, namely the principle of“ensuring free access to national markets”. At a closer look, however, it uses the term“hindering” of market access to explain why product requirements do and certain sellingarrangements do not constitute a restriction to intra-Union trade. It becomes clear that freemarket access is the aim of the two principles of non-discrimination and mutualrecognition and not, as such, a new principle itself. Both the recognition of all productrequirements, including the lawfulness of the product and that of its intended main use, aswell as the prohibition of every discrimination, do ensure free access to national markets.To say that free market access was a principle on its own would be the same as to say thatthe aim of the market freedoms is not the liberalisation of intra-Union trade but theunhindered pursuit of commerce in individual Member States. As demonstrated above, theCourt decided against such a broad concept. It seems that, by adding a “third principle”,the Court wanted to make sure that all measures which do not fit within the categoriesproduct requirements and certain selling arrangements, but nevertheless have the samerestricting effect, are also covered by Art 34 TFEU.C. Restriction of the Freedom to Provide and Receive ServicesIn the first section I analysed the restriction test in the field of goods under Art 34 TFEU. Ishowed that it is governed by two underlying principles, non-discrimination and mutualrecognition. The Court’s case law, including the recent decisions on restrictions on usecould be explained by the application of these principles. There is thus no need for aseparate restriction test based on market access.In this section I will show that this analysis also applies to the restriction test in the field of27
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 and 12: find a breach of Art 34 TFEU. Altho
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: encourage the unhindered pursuit of
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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