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

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mutual recognition. 10 According to this, Member States are prohibited from restricting thesale of goods that have been lawfully produced under the rules of another Member State.The restriction is prohibited even if it results from the application of national regulationsthat do not distinguish between national and imported products (indistinctly applicablemeasures). The principle of mutual recognition seeks to prevent putting a double burdenon imported products by requiring them to comply with two different sets of rules. If theproduct complies with the home State rules, any other Member State must in generalaccept that product on its market.Controversy arises when the principle of mutual recognition and the principle of homeState control are used synonymously. 11 In a broad interpretation mutual recognition isdefined as a mechanism of allocation of regulatory competence to the country of origindesigned to avoid a dual regulatory burden. 12 Others put the focus on functionalparallelism and the created further regulatory space for the host State control through thecreation of the mandatory requirements exception. 13 The host State can invoke those10Recently, as part of the Commission’s 2007 “Package on Internal Market for Goods” the MutualRecognition Regulation has been adopted (Regulation 764/2008, [2008] OJ L218/21). It basicallyrequires a dialogue between the host State and the economic operator whenever the host State has takenor intends to take measures regarding product requirements.11For an overview of the controversy see for example Fichtner, “The Rise and Fall of the Country ofOrigin Principle in the EU’s Services Directive – Uncovering the Principle’s Premises and PotentialImplications”, 54 Essays in Transnational Economic <strong>Law</strong> (2006), 1, at 12 ff.12See Bernard, “Flexibility in the European Single Market” in Barnard/Scott (Eds.), <strong>Law</strong> of the SingleEuropean Market (Oxford, 2002), p. 101, at p. 105.13See for example Weiler, “The Constitution of the Common Market Place: Text and Context in theEvolution of the Free Movement of Goods” in Craig/De Búrca (Eds.), The Evolution of EU <strong>Law</strong> (OUP,1999), p. 349, at pp. 365 ff; Armstrong, “Mutual Recognition” in Barnard/Scott (Eds.), <strong>Law</strong> of theSingle European Market (Oxford, 2002), p. 225, at pp. 235 f; Weatherill, “Pre-emption, Harmonisation4
mandatory requirements, also known as public interest requirements, to justify the nationalrule and thus keep its regulatory power. However one wants to look at it, it is clear fromthe case law that there is no automatic recognition or unrestricted regulatory power of thehome State because it is limited by the acceptance of mandatory requirements and theprinciple of functional equivalence. 14 Therefore whenever home State control ismentioned, it has to be borne in mind that it is just a general assumption of the allocationof regulatory power which can be rebutted.As a consequence of the extensive interpretation of Art 34 TFEU by the Court inDassonville, nearly every national regulation could be brought under judicial scrutinybecause it potentially constituted a hindrance to trade. While many consider Dassonville tobe judicial activism beyond acceptable bounds, 15 it must be seen in the context of theaction or non-action of other European powers. 16 Before the Dassonville decision MemberStates made little systematic effort to remove non-tariff barriers. The unanimityrequirement for Council decisions led to political quasi-inactivity in the 1960s. Inresponse, the Commission issued in 1969 the Directive 70/50 17 which gave measures withand the Distribution of Competence to Regulate the Internal Market” in Barnard/Scott (Eds.), <strong>Law</strong> ofthe Single European Market (Oxford, 2002), p. 41, at pp. 43 ff.14See Barnard, Substantive <strong>Law</strong>, p. 625; for the principle of equivalence see <strong>Case</strong> 188/84, Commission v.France (woodworking), [1986] ECR 419.15To the role of the Court see for example Tridimas, “The Court of Justice and Judicial Activism”, 21 ELRev. (1996), 199.16See Stone Sweet, The Judicial Construction of Europe (OUP, 2004), pp. 109 ff.17Directive 70/50/EEC, [1970] OJ L13/29.5
Page 1 and 2: The Influence of the (post<
Page 3 and 4: A. IntroductionRestrictions of the
Page 5: criteria. Finally, it will be demon
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 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
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Directive. 180 Art 4 (1) of the Dir
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services will face similar difficul
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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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