What is the Keck exception?

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What is the Keck exception?

The Keck decision states essentially that if provisions regarding selling arrangements “affect in the same manner, in law or in fact, the marketing of domestic products and those of other Member States”21, then these should not be caught by Article 34.

What did the court decide in Keck?

In its judgment in Keck and Mithouard the Court found that there is an increasing tendency of traders to invoke Article 34 (28 EC) as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States.

What is the significance of the Keck case?

This issue was later raised in the joined cases of ECJ, Keck and Mithouard, 1993, the significance of which being undoubtedly great on the development of the European common market. In the case of Keck and Mithouard, 1993, the French law had prohibited selling goods at a price lower than the actual purchase price.

What is the significance of the Keck and Mithouard case?

This is known as predatory pricing. Keck and Mithouard (K & M) were prosecuted in France for selling goods at a price, which was lower than their actual purchase price (resale at a loss), contrary to the French law. The law did not ban sales at a loss by the manufacturer.

Is the Keck justified?

The Keck Case Product requirements would always fall within the scope of EU law and have to be justified but CSAs. So long as the CSAs applied equally to all traders in the national territory and had the same effect on all traders in law and in fact, fell outside the scope of the Treaty.

What is an indistinctly applicable measure?

Distinctly applicable measures are those which do not apply equally to domestic and imported goods whereby, indistinctly applicable measures apply to both domestic and imported goods equally and without distinction.

Is a product requirement an MEQR?

Basically, yeah. A product requirement is something which is physically to do with the product. So think of Rau – requiring all margarine to be sold in cube boxes is a MEQR because it means other Member States have to repackage their margarine.

What is MEQR EU law?

MEQR is defined as “all trading rules enacted by a member state which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade.” The definition is very broad and encompasses a variety of diverse forms of obstruction.

Does Article 34 have direct effect?

Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW), Advocate General Trstenjak has broken a lance for horizontal direct effect of article 34 TFEU. Until now, the Court has always denied horizontal direct effect of the free movement of goods provisions, in contrast to the other fundamental freedoms.

What is the difference between a quantitative restriction and MEQR?

The concept of MEQR is wider in scope than quantitative restrictions. MEQRs can be divided into two different scopes: Distinctly Applicable Measures: Measures which apply exclusively to imports or exports. Indistinctly Applicable Measures: Measures which apply to both imports or exports, AND domestic goods.

What are indistinctly applicable measures?

Is there any criticism of the Keck judgment?

Criticism and development of the Keck jurisprudence. The judgment has been subject to a number of criticism in the academic literature. In response to this, the Court has meanwhile diminished the importance of the Keck-judgment, giving way to a refined 3-tiers-test.

Is the Keck distinction a success in Germany?

In many cases the Keck distinction has been a success, dealing with complaints cogently. In Dinamic Medien [14], where the court held a rule in Germany placing restrictions on the sale of image storage media to young persons via mail order unless they had been reviewed as suitable and obtained a sticker to certified this was a ‘product rule’.

What was the problem with Article 28 after Keck?

Article 28 after Keck – the devil is in the wording Although the intentions and logic of the Court is evident from its judgment in Keck, this precedent failed to solve all the problems and ambiguity surrounding the Court’s approach to dealing with MEQRs. The main “problem resides in ambiguity about the meaning of the term ‘selling arrangements.’”

What was the ruling in the Keck and Mithouard case?

Reference for a Preliminary Ruling in the Criminal Proceedings against Bernard Keck and Daniel Mithouard (1993) C-267/91 is an EU law case, concerning the conflict of law between a national legal system and European Union law. The Court found that “selling arrangements” did not constitute a measure having equivalent effect…