User:Kaihsu/IMlawC5

European internal market.

Module C: Beyond discrimination.

Chapter 5: The limits of restrictions.

The aftermath of Keck
In Joined Cases C-267 and C-268/91 Keck, the Court overturned the line of caselaw started by Joined Cases 60 and 61/84 Cinéthèque (videos), which had led to inconvenient results in cases such as Case 145/88 Torfaen Borough Council v B&Q plc on Sunday trading (Keck, paragraphs 15 and 16):


 * It is established by the case-law beginning with Cassis de Dijon (Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung fuer Branntwein [1979] ECR 649) that, in the absence of harmonization of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30. This is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods.


 * By contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

The Court insists on mutual recognition clause in national rules: Case C-184/96 Commission v France (foie gras). Union harmonization measures need a legal basis furthering market integration: Case C-376/98 Germany v Council and Parliament (tobacco advertising). Directive 2005/29 on unfair business-to-consumer commercial practices maximally harmonized permissible national measures falling within its scope. This was relied upon in Case C-261/07 VTB-VAB.

Goods
Selling arrangements include rules governing who can sell a product, where it can be sold, when it can be sold, and to whom it can be sold. In case of doubt, the Court tends to characterize the rule as product-bound: Case C-368/95 Familiapress, Case C-244/06 Dynamic Medien. Rules that govern how a product is to be sold or promoted are less easy to analyse. A price-fixing rule can be a selling arrangement, but Keck requires that the arrangement must apply equally to all relevant traders operating within the national territory: Case C-531/07 Fachverband der Buchund Medienwirtschaft; see also Case C-108/09 Ker-Optika.

‘It is for the referring court to determine [...] whether the application of national law is such as to ensure that those rules affect in the same manner, in law and in fact, the marketing of domestic products and that of products from other Member States, and, if that is not the case, to establish whether the rules in question are justifi ed by an objective in the general interest within the meaning which the Court’s case-law gives to that expression and whether they are proportional to that objective’: Case 20/03 Burmanjer; see also Case C-441/04 A-Punkt Schmuckhandel, Case C-141/07 Commission v Germany (German hospital pharmacies).

For advertising, see Case C-412/93 Leclerc-Siplec, where an advertising ban on the sale of fuel at stores was not caught by Article 34 TFEU; Joined Cases C-34/95 to C-36/95 De Agostini where a national rule is nondiscriminatory in law but not in fact; Case C-405/98 Gourmet International where an advertising ban on alcohol was caught by Article 34 TFEU.

For the development of the (preventing or hindering) market access test for discriminatory-in-fact and nondiscriminatory measures, see Case C-254/98 Heimdienst, Case C-322/01 DocMorris. A ban on use has a considerable impact on consumer behaviour, which in turn affects access to the market, and is caught by Article 34 TFEU: Case C-110/05 Commission v Italy (Italian motorcycle trailers), confirmed in Case C-142/05 Mickelsson and Roos. The market access test may have replaced the test in Keck: Case C-333/14 Scotch Whisky Association.

Other freedoms

 * Persons
 * Applying Keck to Article 45 TFEU was rejected by the Court in Case C-415/93 Bosman; see also Case 143/87 Stanton, Case C-10/90 Masgio. It was not applied in Case C-190/98 Graf either. The market access test is in Case C-19/92 Kraus.


 * Services and establishment
 * Keck did not apply in Case C-384/93 Alpine Investments; the nondiscriminatory national measure “directly affects access to the markets in services in the other Member States and is thus capable of hindering intra-[Union] trade in services” and breaches Article 56 TFEU but could be justified. The market access test is in Case C-76/90 Säger (Article 56 TFEU, services); Case C-168/91 Konstantinidis, Case C-55/94 Gebhard, Case C-212/97 Centros (all Article 49 TFEU, establishment).


 * Capital
 * Keck was not applied in Case C-98/01 Commission v United Kingdom (golden shares); see also Case C-212/09 Commission v Portugal (GALP golden shares).

Uncertain and indirect effects
The Court can find that a contested measure did not even constitute a potential or indirect restriction on imports or the effects were too uncertain and indirect (de minimis):
 * Goods :Case C-69/88 Krantz, Case C-44/98 BASF, C-379/92 Peralta, Case C-134/94 Esso Español, Case C-96/94 Centro Servizi Spediporto, Case C-266/96 Corsica Ferries, Case C-291/09 Guarnieri & Cie.
 * Persons :Case C-190/98 Graf.
 * Services :Joined Cases C-418–21, 460–2 and 464/93, 9–11, 14–15, 23–24 and 332/94 Semeraro Casa Uno, Case C-134/03 Viacom Outdoor, Joined Cases C-544/03 and C-545/03 Mobistar
 * Capital :AG opinion in Case C-412/97 ED Srl v Italo Fenocchio, judgment.