After Keck: Some thoughts on how to clarify the clarification

Common Market Law Review

Volumn 33, Issue 5, 1996, Pages 885-906

  Weatherill, Stephen ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 26244459196     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.54648/119552     Document Type: Article

References (69)

1. Joined Cases C-267/91 & C-268/91 [1993] ECR I-6097.
2. Para 14 of the ruling.
3. Case C-415/93, Union Royale Belge des Sociétés de Football Association ASBL v. Jean-Marc Bosman, judgment of 15 Dec. 1995, nyr. See annotation by this author, in this Review at 993-1035.
4. Case C-384/93 [1995] ECR I-1141.
5. Cf. discussion by Reich, "The 'November revolution' of the European Court of Justice: Keck, Meng and Audi revisited", 31 CML Rev. (1994) 459.
6. See also Chalmers, "Repackaging the internal market - the ramifications of the Keck Judgment", (1994) 19 EL Rev. 385;
7. Poiares Maduro, "Keck: The end? The beginning of the end? Or just the end of the beginning?", 1 Irish Journal of European Law (1994), 30;
8. Stadlmeier, "'Contrary to what has previously been decided...' The search for the rule goes on", (1995) LIEI 9, especially 16-18;
9. Ross, "Keck - Grasping the wrong nettle", Ch.4 in Caiger and Floudas, 1996 Onwards, (Chichester, UK: Wiley, 1996).
10. Weatherill and Beaumont, EC Law (London, Penguin, 2nd Edition, 1995), p. 542.
11. Case 145/88, Torfaen Borough Council v. B & Q plc, [1989] ECR 765, Case C-169/91, Stoke-on-Trent and Norwich City Councils v. B & Q plc, [1992] ECR I-6635. For discussion of tactics and judicial uncertainty during the legal battle, see Rawlings, "The Eurolaw Game: Some deductions from a saga", 20 Journal of Law and Society (1993), 309.
12. Cf Gormley, "Reasoning Renounced? the Remarkable Judgment in Keck & Mithouard", (1994) Euro Bus L Rev 63.
13. Cf. Roth, annotation, 31 CML Rev. (1994) 845; Reich, (1993) ZIP, 1813.
14. Cf. Micklitz, (1994) IStR, 86, 89.
15. Para 16 of the ruling in Keck.
16. It is well known that a retreat to formalism may also be identified in a package of cases decided in the same month as Keck, marked by a reticence to extend use 13. Case C-391/92, [1995] ECR I-1621.
17. 1628-1629.
18. Case C-412/93 [1995] ECR 1-179, annotation by Idot, 33 CML Rev. (1996), 113.
19. The parties were plainly in agreement as to the result to be achieved, but the Court nevertheless accepted that it had jurisdiction to answer the questions referred. On this point the ruling has links to the discussion in section 4.2.2. of the Bosman annotation in this Review.
20. Supra, note 13.
21. Case C-384/93 [1995] ECR I-1141; see annotation by Ross, (1995) 20 EL Rev. 507.
22. Supra, note 15. It might be added that in both cases it was found that Community secondary legislation in the field did not provide answers to the questions at stake.
23. Cited supra note 3.
24. A.G. Lenz discusses possible discriminatory aspects, but he too prefers to rest his analysis on a wider treatment of Art. 48 as a control over all restrictions on free movement, not simply a prohibition on nationality discrimination.
25. The point is also taken by Hatzopoulos, annotation of Alpine Investments, 32 CML Rev. (1995), 1427, 1437-8. Cf. the careful analysis of Keck provided by A.G. Van Gerven in Joined Cases C-69/93 and C-258/93, Punto Casa SpA v. Sindaco del Comme di Capena et al., [1994] ECR I-2355.
26. As is well known, Verkaufsmodalitäten and modalités de vente were equally puzzling new terms.
27. Case C-315/92 [1994] ECR I-317.
28. Case C-470/93 judgment of 6 July 1995.
29. On the Court's perception of the consumer interest in this context, see Weatherill, Law and Integration in the European Union, (Oxford UP, 1995), pp.245-252.
30. Case C-292/92 judgment of 15 Dec. 1993; Joined Cases C-401/92 and C-402/92 [1994] ECR I-2199 respectively. See also Joined Cases C-69/93 and C-258/93 Punto Casa SpA supra, note 22.
31. Supra, note 7.
32. Case C-23/89 [1990] ECR I-3059.
33. Precisely this problem is fully recognized, but (it is submitted) not solved, in White's influential attempt to draw a distinction based on the characteristics of products and the circumstances in which they may be sold, which was perhaps the precursor of Keck, ("In Search of the Limits of Article 30 of the EEC Treaty", 26 CML Rev. (1989) 235).
34. Of course the absorption of Bosman itself into this formula would require adjustment; Bosman is an Article 48 case involving restrictions introduced by private parties, so the proposed test's reference to "measures introduced by authorities in a Member State" must be read with an awareness that all public authorities are covered, but private authorities too may be caught, depending on which primary Treaty provision is at stake. On the scope of Art. 48, see annotation in this Review at 906, and footnote 49.
35. See especially Case C-19/92, Dieter Kraus v. Land Baden-Württemberg, [1993] ECR I-1663 and Case C-55/94, Gebhard v. Consiglio dell'Ordine degli Avvocati e Procuratori di Milano judgment of 30 Nov. 1995, nyr; the Court is increasingly applying these principles, originating in Case 120/78, "Cassis de Dijon", [1979] ECR 649, across the several Treaty provisions concerned with free movement.
36. I do not here address the point that if the scope of Art. 30 narrows, then so too does that of Art. 100A, which places a heavier emphasis on the role of inter alia Arts. 129A, 130S and of course 235. So choice of legal base for EC legislation is not only a complex question, it fluctuates.
37. Case C-275/92 [1994] ECR I-1039.
38. Cf Case 34/79, Henn and Darby, [1979] ECR 3795, although it has been argued that the regime challenged in that case discriminated against imports, Catchpole and Barav, [1980/1] LIEI 1.
39. Note that bans are an extreme form of rules affecting "selling arrangements", which underlines the inadequacy ofthat category as a tool of legal analysis.
40. Case C-379/92 [1994] ECR I-3453.
41. Joined Cases C-140/94, C-141/94 and C-142/94 judgment of 17 Oct. 1995, nyr. See also Case C-387/93, Giorgio Domingo Banchero, judgment of 14 Dec. 1995, nyr; Case C-134/94, Esso Española SA v. Comunidad Autónoma de Canarias, judgment of 30 Nov. 1995, nyr.
42. The ruling is firmly in line with those mentioned supra, at note 12, where the Court declined to build a general theory based on the effect utile of the competition rules. The Court's insouciance to the perils of regulatory failure flowing from the cloaking of private economic actors in the mantle of adjudicators of the public interest seems breathtaking; but, as A.G. Fennelly makes explicit, if there is contamination of the quality of public decision-making, then the jurisdiction to find a solution lies with the Italian system, not at EC level.
43. Para 29.
44. I refrain from describing this as de minimis. This is helpful in competition law, where it can be given precise shape by reference to turnover figures, but the issue here is less tangible and deserves separate terminology.
45. Para 205 of the Opinion (his emphasis).
46. Case 286/81 [1982] ECR 4575.
47. Case C-382/87 [1989] ECR 1235.
48. Supra, note 15. See especially A.G. Jacobs's Opinion.
49. A.C. Jacobs in Leclerc-Siplec, supra note 15, admits that his test of "substantial" restriction on market access is hard to handle and might be embraced over-enthusiastically by (some) national courts with the result that Art. 30 will be pruned back too far. Cf, pre-Keck, Wils, "The search for the rule in Article 30 EEC: much ado about nothing?", 18 EL Rev. (1993), 475;
50. Mortelmans, "Article 30 of the EEC Treaty and legislation relating to market circumstances: Time to consider a new definition?", 28 CML Rev. (1991), 115, 127, who rejects A.G. Van Gerven's approach in Torfaen as placing "excessive demands on the national court"; he believes grey areas are unavoidable, but should be taken to fall within Art. 30 on the basis in dubio pro communitate (131).
51. Of course, this perspective will invite modification after the completion of the internal market, though it will be appropriate not to lose sight of the need to maintain the internal market.
52. Case 15/79, [1979] ECR 3409.
53. E.g. Case 237/82, Jongeneel Kaas, [1984] ECR 483; Case C-339/89, Alsthom Atlantique SA v. Sulzer SA, [1991] ECR I-107.
54. Bernard criticizes the Court's failure in Alpine Investments to explain its relationship with Groenveld in "Discrimination and free movement in EC Law", 45 ICLQ (1996) 82, 107, and sets the decision aside as anomalous.
55. Indeed A.G. Jacobs hints in Alpine Investments that time may be ripe for reconsideration of the Art. 34 case law; the same is true of A.G. Lenz in Bosman (para 207).
56. Cf. in connection with services Case C-381/93, Commission v. France, [1994] ECR I-5145.
57. In Groenveld, A.G. Capotorti proposed the use of the Cassis approach in relation to Art. 34, shifting the focus to a justification which in the case was in content remarkably similar to that advanced in Alpine Investments - protecting reputation of Dutch producers in markets where antipathy to use of horsemeat is strong. But on the facts A.G. Capotorti would not have accepted that justification.
58. Some movement in this direction may already be observed in connection with the free movement of persons, where the Court has accepted that a State's treatment of its own nationals is caught by Community law in so far as a cross-border element, typically the individual's departure from and return to that State, has intervened. See Case C-370/90, R v. IAT and Surinder Singh, ex parte Secretary of State for the Home Department, [1992] ECR I-4265; Case C-19/92, Dieter Kraus, cited supra note 32.
59. Supra, note 7.
60. Cf. analysis in this vein by A.G. Tesauro in Hünermund, supra, note 27.
61. A.G. Van Gerven's analogy with market access thresholds under Art. 85, suggested in Torfaen Borough Council v. B & Q pic supra, note 7 may now deserve at least a nod, if not an embrace, in the light of the erratic case law that has accumulated over the last seven years since Mr Van Gerven's suggestion.
62. Supra, note 27.
63. He could not have used Art. 48 to challenge the rules had his transfer been between Belgian clubs, although he would have been able to take advantage of the subjection of private agreements to the competition rules. This means that a football player in one State subject to restrictions within that State may be able to invoke Community law (Art. 85, see annotation in this Review, 1021), where, e.g. Alpine Investments would have had no case "internally" as a result of impairment of its commercial freedom by the public authorities.
64. Case 81/87, [1988] ECR 5483.
65. Supra, note 34.
66. Relevant case law is examined at length by A.G. Lenz in Bosman.
67. Supra, note 48.
68. It should not be forgotten that there remains controversy about the extent of such protection; see the differences between A.G. Jacobs and the Court in Case C-168/91, Konstantinidis v. Stadt Altensteig, judgment of 30 March 1993.
69. The precise personal scope of the provisions is not finally settled: supra note 31.