KECK (re)applied

Abstract

After years of uncertainty over the precise scope of Article 30 of the EC Treaty, the decision in Joined Cases C-267/91 and C-268/91 Keck and Mithourd [1993] E.C.R. I-6097 was thought to have introduced some clarity. It will be recalled that in Keck the Court made a distinction between, on the one hand, “production requirements” or “product characteristics” to which the decision in Cassis applies (para. 15) and, on the other, “certain selling arrangements” which do not breach Article 30 provided “that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States” (para. 16). The Court continued that where this proviso is satisfied, the national restrictions are not by nature such as to prevent the access of foreign goods to the market or to impede access any more than they impede the access of domestic products (para. 17).