The Notion of Market Access

1366 Words3 Pages

The pioneering judgement in Keck1 differentiated product requirements and selling arrangements. Justified by the effect on market access, the latter was held to be outside of the ambit of Article 34 TFEU, prohibiting all measures having equivalent effect to quantitative restrictions on imports2 between Member States. This was widely interpreted in Procureur du Roi v Dassonville3 to preclude the totality of trading rules implemented by Member States that are capable of either directly, indirectly, actually or potentially, hindering intra-Community trade, as measures having equivalent effect.4 In Keck, the European Court of Justice (ECJ) aimed to clarify case law5 after Article 34 was increasingly invoked by merchants challenging national trade regulations insofar as the impact on the free movement of goods was negligible.6 However, it received much criticism for its apparent contradiction of the application of EU laws of free movement of goods, most notably the judgements in Dassonville and ‘Cassis de Dijon,’7 which followed the Treaty’s objective of a single market. “The most authoritative assault ever mounted on the reasoning in that judgement,”8 Advocate General Jacobs’ (AGJ) criticism of Keck in Leclerc-Siplec 9, will be examined throughout in accordance with the differing theories concerning the approach of Article 34. AGJs’ condemnation of Keck stems from the Court’s apparent disregard of the Treaty’s objectives of a single market.10 The formalistic approach, focusing on legal and factual equality, allows for a test of discrimination resulting in trade restrictions being tested against local conditions. This is contrary to the aims of access to the Community market in its entirety,11 which requires the abolition of all subst... ... middle of paper ... ...Access: A Concept or Slogan?”, 47 CML Rev. (2010). Peter Oliver, “Some Further Reflections on the Scope of Articles 28–30 (ex 30–36) EC” 36 Common Market Law Review. (1999) Stephen Weatherill, “After Keck: Some Thoughts on how to Clarify the Clarification”, 33 Common Market Law Review. (1996) Online Articles Felicitas Parapatits, “The influence of the (post) Keck Case Law on the Freedom to Provide Services,” Univeristy of Vienna (2012), accessed 8 November 2013. Elin Sironey, “The Limit of Article 28 EC - The Ten Year Development of Keck and Mithouard,” Faculty of Law of the University of Lund, (2003), accessed 8 November 2013.

Open Document