Have the CJEU Abandoned the Keck Principle?
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The Court of Justice of the European Union (CJEU) has not formally abandoned the Keck formula, but its practical relevance has significantly diminished as the Court has shifted towards a broader market access test in cases involving Article 34 TFEU, which prohibits quantitative restrictions between Member States on imports and all measures having equivalent effect. This transition reflects dissatisfaction with the rigid formalism of Keck and the limitations it imposes on capturing the complexities of cross-border trade between EU Member States.
Keck and Mithouard were prosecuted under French law for selling Picon liqueur below cost price, a practice known as resale at a loss, which was prohibited under French competition law. The defendants argued that the prohibition infringed upon what was then Article 28 TEEC (now Article 34 TFEU), as it restricted their ability to market imported goods competitively. The CJEU, however, rejected this argument, finding that rules prohibiting resale at a loss were not concerned with the characteristics of goods and thus did not constitute a measure having equivalent effect to a quantitative restriction on trade. The Court introduced the concept of selling arrangements and held that such arrangements do not breach Article 34 if they apply equally in law and in fact to all traders and do not discriminate against imported goods.
The Keck decision (1993) was a response to the growing number of cases under Article 34 TFEU, which were overwhelming the Court. The ruling sought to limit the reach of Article 34 by distinguishing between product requirements (which fall under Article 34) and selling arrangements (which typically do not). The decision was intended to reduce the Court’s involvement in purely internal matters by excluding from Article 34's scope national rules that merely regulate how goods are sold, provided they apply equally to all traders and do not discriminate against imported goods. Initially, Keck appeared to serve its purpose by curtailing the flood of litigation and simplifying the application of EU trade law.
Despite its initial appeal, Keck quickly became controversial due to its overly formalistic approach, which many argued failed to account for the real impact of certain regulations on market access. Critics like Advocate General Jacobs and scholars like Stephen Weatherill pointed out that the rigid distinction between product requirements and selling arrangements ignored the broader market effects of national measures. For example, in Leclerc-Siplec (1995), Advocate General Jacobs argued that advertising restrictions could substantially hinder market access, even if they were non-discriminatory and equally applied. This critique emphasised that the real issue should be whether a measure restricts market access, not whether it fits neatly into one of Keck’s categories.
Over time, the CJEU began to move away from the strict formalism of Keck by increasingly focusing on whether a measure hinders market access. In cases like Commission v Italy (2009) and Mickelsson and Roos (2009), the Court applied this broader approach, rejecting the Keck framework where it was clear that even non-discriminatory measures could impede access to the internal market. In Commission v Italy, for instance, Italy’s ban on towing trailers with mopeds, which applied regardless of origin, was struck down because it affected the access of such products to the market, even though it could have been classified as a use arrangement under Keck.
Although the Court has not explicitly overruled Keck, its application has become increasingly rare and limited. More recent cases, such as Deutscher Apothekerverband v 0800 DocMorris NV (2003) and Deutsche Parkinson Vereinigung (2016), have focused on the market access impact of national rules, particularly those affecting e-commerce and cross-border trade. These cases demonstrate that even non-discriminatory national measures can still breach Article 34 if they create barriers to market access. While the Keck exception remains formally valid, its influence has been substantially reduced, as illustrated by cases like Visnapuu (2015) and Colruyt (2016), where the Court applied the Keck formula but reached decisions largely based on market access considerations.
In summary, while the CJEU has not formally abandoned Keck, it has gradually shifted towards a more flexible and context-sensitive approach that prioritises market access. The Keck formula has been relegated to a narrow and rarely invoked exception, as the Court increasingly recognises that many non-discriminatory rules can still create significant barriers to the internal market. Thus, while Keck remains technically valid, its practical significance in shaping EU trade law has greatly diminished.
Keck and Mithouard were prosecuted under French law for selling Picon liqueur below cost price, a practice known as resale at a loss, which was prohibited under French competition law. The defendants argued that the prohibition infringed upon what was then Article 28 TEEC (now Article 34 TFEU), as it restricted their ability to market imported goods competitively. The CJEU, however, rejected this argument, finding that rules prohibiting resale at a loss were not concerned with the characteristics of goods and thus did not constitute a measure having equivalent effect to a quantitative restriction on trade. The Court introduced the concept of selling arrangements and held that such arrangements do not breach Article 34 if they apply equally in law and in fact to all traders and do not discriminate against imported goods.
The Keck decision (1993) was a response to the growing number of cases under Article 34 TFEU, which were overwhelming the Court. The ruling sought to limit the reach of Article 34 by distinguishing between product requirements (which fall under Article 34) and selling arrangements (which typically do not). The decision was intended to reduce the Court’s involvement in purely internal matters by excluding from Article 34's scope national rules that merely regulate how goods are sold, provided they apply equally to all traders and do not discriminate against imported goods. Initially, Keck appeared to serve its purpose by curtailing the flood of litigation and simplifying the application of EU trade law.
Despite its initial appeal, Keck quickly became controversial due to its overly formalistic approach, which many argued failed to account for the real impact of certain regulations on market access. Critics like Advocate General Jacobs and scholars like Stephen Weatherill pointed out that the rigid distinction between product requirements and selling arrangements ignored the broader market effects of national measures. For example, in Leclerc-Siplec (1995), Advocate General Jacobs argued that advertising restrictions could substantially hinder market access, even if they were non-discriminatory and equally applied. This critique emphasised that the real issue should be whether a measure restricts market access, not whether it fits neatly into one of Keck’s categories.
Over time, the CJEU began to move away from the strict formalism of Keck by increasingly focusing on whether a measure hinders market access. In cases like Commission v Italy (2009) and Mickelsson and Roos (2009), the Court applied this broader approach, rejecting the Keck framework where it was clear that even non-discriminatory measures could impede access to the internal market. In Commission v Italy, for instance, Italy’s ban on towing trailers with mopeds, which applied regardless of origin, was struck down because it affected the access of such products to the market, even though it could have been classified as a use arrangement under Keck.
Although the Court has not explicitly overruled Keck, its application has become increasingly rare and limited. More recent cases, such as Deutscher Apothekerverband v 0800 DocMorris NV (2003) and Deutsche Parkinson Vereinigung (2016), have focused on the market access impact of national rules, particularly those affecting e-commerce and cross-border trade. These cases demonstrate that even non-discriminatory national measures can still breach Article 34 if they create barriers to market access. While the Keck exception remains formally valid, its influence has been substantially reduced, as illustrated by cases like Visnapuu (2015) and Colruyt (2016), where the Court applied the Keck formula but reached decisions largely based on market access considerations.
In summary, while the CJEU has not formally abandoned Keck, it has gradually shifted towards a more flexible and context-sensitive approach that prioritises market access. The Keck formula has been relegated to a narrow and rarely invoked exception, as the Court increasingly recognises that many non-discriminatory rules can still create significant barriers to the internal market. Thus, while Keck remains technically valid, its practical significance in shaping EU trade law has greatly diminished.
