Critiicism of Keck

Question 1

Three criticisms of keck

Answer 1

With dynamic selling arrangements those relating to sale methods and advertising these would fail the second element of the keck test.

Keck distinction too rigid and did not strike the right balance between member states regulatory freedom and the free movement of good principle.

The distinction between selling arrangements and product requirements does not fit all measure given by the all measures.

Question 2

AG Jacob proposal

Answer 2

Alternative market test. The guiding principle for Article 34 that all undertaking which engage in a legitimate economic activity should have unfetted access to the whole of the union, unless there is a valid reason for denying them full access to a part of the market.

Question 3

Commission v Italy (trailers)

Answer 3

Many people believe that Keck should be abandoned and replaced with whether any other measure hinders access of products to the market. Prohibition on the use of trailers had considerable influence on consumer behaviour. As they are not permitted, consumers would have practically no interest in buying them. This hinders the access of products to the market.

Question 4

Micklesson and Roos (jet ski)

Answer 4

The issue concerned a Swedish law prohibiting the use of jet skis on water other that general navigable waterways. The court did not mention keck. Instead of the court distinguishing between product requirements and selling arrangements the court distinguished between product requirements and the measure hindering access of products to the market. If people are not allowed to use jet skis then people will not buy jet skis so this does affect access to the market.

Question 5

Kep-Optika facts

Answer 5

The issue concerned the Hungarian rule prohibiting the sale of contact lenses online. The court distinguished three categories of rules as regards the scope of Article 34. These are product requirements, selling arrangements and other measures.

Question 6

New approach introduced by Kep-Optika

Answer 6

1. Does the rule concern a product itself? Yes then it is prohibited unless justified under Art 36 or mandatory requirements. (Casis de Dijon) For example: Danish legislation required certain drinks to be sold in demark to be packaged in reusable containers and deposit and return schemes were to be established. Protection of the environment used as the justification under an extension of the mandatory requirement
2. Is the rule a selling arrangement? It is directly or indirectly discriminatory? Yes, then it is prohibited unless justified under Article 36 or mandatory requirements. (keck)
3. 3. Rules which cannot be considered as product requirements or selling arrangements. Doe a rule concern the use of a product? Yes, does it hinder its access to a national market? (Com v Italy)

Question 7

Explanation of the 3rd rule introduced by Kep Optika

Answer 7

The type of rules which are covered under the third category on the use. If consumers are banned from using trailers there would no be practical reason to import trailers so the court found this indistinctly applicable measure to have equivalent effect illegal under article 34. However, it was justified under public health grounds

Does a rule concern the use of a product? Yes, does it hinder its access to a national market? Yes then it is prohibited unless justified under Article 36 or mandatory requirements

Question 8

Appling article 34

Answer 8

• Identify the nature of the rule/measure/law
• Establish its legality
• Inspect its possible justification on objective grounds

Even if the government can validly justify under mandatory requirements or under article 36 the measure must be proportional

Question 9

Justification under 36

Answer 9

• Public policy morality security
• Protection of health, animals, plants
• Historic/archaeological value
• Industrial/commercial property