Keck and Mithouard [1993]
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C-267/91 and C-268/91 Reference for a Preliminary Ruling in the Criminal Proceedings against Bernard Keck and Daniel Mithouard [1993], collectively known as Keck and Mithouard [1993], is a joined case that dealt with the interpretation of European Union law regarding the free movement of goods within the European Community.
The case involved two French traders, Bernard Keck and Daniel Mithouard, who were prosecuted under French competition law for selling goods below their purchase price, a practice known as resale at a loss. The traders challenged their prosecution, arguing that the French law contravened what was then Article 28 of the Treaty Establishing the European Community (now Article 34 of the Treaty on the Functioning of the European Union, TFEU), which prohibits measures having an equivalent effect to quantitative restrictions on imports.
In its judgment, the European Court of Justice (ECJ) made an important distinction between product requirements and certain selling arrangements. The Court ruled that national rules concerning selling arrangements, such as those regulating where, when, or how goods can be sold, do not necessarily infringe Article 28, provided they apply to all relevant traders operating within the national territory and affect domestic and imported goods in the same manner, both in law and in fact. The Court reasoned that such rules fall outside the scope of Article 28 because they are not designed to regulate trade between Member States and do not directly hinder the free movement of goods.
The decision was a departure from the earlier broad approach taken by the ECJ, particularly in cases like Dassonville and Cassis de Dijon, where almost any national measure that could potentially hinder trade between Member States was considered a violation of EU law. In Keck, the Court narrowed this scope by clarifying that certain selling arrangements, as long as they are non-discriminatory and apply equally to all traders, are permissible. The ruling aimed to curb the increasing tendency of traders to invoke EU law to challenge any national regulation that limited their commercial freedom.
The Keck ruling, while providing clarity, has been subject to significant criticism. Legal scholars have pointed out that the Court did not clearly define what constitutes a selling arrangement or how the discrimination test should be applied. This lack of clarity has led to inconsistent interpretations in subsequent cases, causing some confusion in the application of EU law. Additionally, the rigid distinction between product requirements and selling arrangements has been viewed as overly simplistic, failing to account for more complex barriers to market access.
Over time, the significance of the Keck decision has been somewhat diminished as the Court developed a more nuanced approach, focusing on market access rather than strictly adhering to the product requirement versus selling arrangement dichotomy. Cases like Ker-Optika [2010] illustrate this shift, where the Court considers the overall impact of national measures on market access. Nonetheless, while the Keck criteria have been refined, they continue to be applied in recent judgments, demonstrating that the ruling remains a relevant and influential part of EU free movement of goods jurisprudence.
The case involved two French traders, Bernard Keck and Daniel Mithouard, who were prosecuted under French competition law for selling goods below their purchase price, a practice known as resale at a loss. The traders challenged their prosecution, arguing that the French law contravened what was then Article 28 of the Treaty Establishing the European Community (now Article 34 of the Treaty on the Functioning of the European Union, TFEU), which prohibits measures having an equivalent effect to quantitative restrictions on imports.
In its judgment, the European Court of Justice (ECJ) made an important distinction between product requirements and certain selling arrangements. The Court ruled that national rules concerning selling arrangements, such as those regulating where, when, or how goods can be sold, do not necessarily infringe Article 28, provided they apply to all relevant traders operating within the national territory and affect domestic and imported goods in the same manner, both in law and in fact. The Court reasoned that such rules fall outside the scope of Article 28 because they are not designed to regulate trade between Member States and do not directly hinder the free movement of goods.
The decision was a departure from the earlier broad approach taken by the ECJ, particularly in cases like Dassonville and Cassis de Dijon, where almost any national measure that could potentially hinder trade between Member States was considered a violation of EU law. In Keck, the Court narrowed this scope by clarifying that certain selling arrangements, as long as they are non-discriminatory and apply equally to all traders, are permissible. The ruling aimed to curb the increasing tendency of traders to invoke EU law to challenge any national regulation that limited their commercial freedom.
The Keck ruling, while providing clarity, has been subject to significant criticism. Legal scholars have pointed out that the Court did not clearly define what constitutes a selling arrangement or how the discrimination test should be applied. This lack of clarity has led to inconsistent interpretations in subsequent cases, causing some confusion in the application of EU law. Additionally, the rigid distinction between product requirements and selling arrangements has been viewed as overly simplistic, failing to account for more complex barriers to market access.
Over time, the significance of the Keck decision has been somewhat diminished as the Court developed a more nuanced approach, focusing on market access rather than strictly adhering to the product requirement versus selling arrangement dichotomy. Cases like Ker-Optika [2010] illustrate this shift, where the Court considers the overall impact of national measures on market access. Nonetheless, while the Keck criteria have been refined, they continue to be applied in recent judgments, demonstrating that the ruling remains a relevant and influential part of EU free movement of goods jurisprudence.
