The wording of the provision, especially with regards to equivalently. Judgment of the court of justice, keck and mithouard, joined cases c26791 and c26891 24 november 1993 author. Reference for a preliminary ruling in the criminal proceedings against bernard keck and. In the seminal case of dassonville the scope of article 34 tfeu was cast very wide, indeed its potential breadth is striking. The court held that any measure capable of hindering, directly or indirectly, actually or potentially, intracommunity trade 11 would fall within the scope of article 34, and thus be prohibited. Easily share your publications and get them in front of issuus. In other words, measures would fall within the article 34 tfeu prohibition if, even though indistinctly applicable, they were liable to impede the access of imports more than the access of domestic products.
Keck and mithouard contended that their prosecution under french law, for selling products below wholesale prices, contravened teec article 28 now tfeu art 34. Questions on article 36 tfeu occupied the court before those on direct effect or primacy. The prohibition of discriminatory taxation, abolition of customs duties and removal of other administrative rules and barriers which hinder the free movement of goods have been tackled by articles 34 and 35 of the treaty on the functioning of the european union tfeu. Product requirements and certain selling arrangements 1. In the following chapters, we will explore the background of the caselaw leading to the. Finally, this chapter explores a potential new category of measures having an equivalent effect. Article 30 eec does not apply to legislation of a member state imposing a general prohibition on resale at a loss.
The courts jurisprudence on free movement of goods. Article 34 tfeu, article 36 tfeu, bot ag, c49214, case c20412, case c57312, cases c20412 through to c20812, certificate of origin, cjeu, coj, curia, directive 200177, directive 200928, domestic regulatory autonomy, ecj, electricity, essent, eu, european court of justice, feedin, feedin tariffs, flemish region, free movement of. A french competition law prohibited retail of products for prices below that which they had been purchased wholesale. Article 34 tfeu article through the lens of goods and services. The keck and mithouard case law of the cjeu constituted an important milestone in the effort to develop workable principles for the interpretation of article 34 tfeu in a way that would not jeopardize the ability of member states to regulate their. French law, for selling products below wholesale prices, contravened teec article 30 now tfeu art 34. Judgment of the court of justice, keck and mithouard. The union shall comprise a customs union which shall cover all trade in goods. The market access test of article 34 tfeu by lynndon groff the european court of justice has, at times, utilized a market access test to determine. In orgacom v vlaamse landmaatschappij, case c254, the ecj sent out its regular reminder of the core foundation of eu law. The provisions of the treaties shall not preclude the application of the following rules. However, the cjeu has been reluctant to provide with deeper insight on the conditions that needs to me met and where the. The contested rules amounted to an meqr and thus fell within the scope of article 34 tfeu because they hindered access to the italian.
It also looks at the application of article 34 to restrictions on advertising and the use of products, and finally, discusses. Member states cannot circumvent their obligations under article 34 tfeu simply by relying on a private company. Pdf free movement of goods and their use what is the. The organisation at issue operates both to draw up technical standards for products used in the drinking water supply. The court indeed expressly admitted that something had gone wrong ibid. Oebel, case 15580, 1981 ecr 1993 outside scope of art 34 ex28. Articles 34 and 35 can be used to strike down national legislation which. Article 34 tfeu prohibition if, even though indistinctly applicable, they were. Exploring the outer limits of article 114 tfeu towards a. Issuu is a digital publishing platform that makes it simple to publish magazines, catalogs, newspapers, books, and more online. Are indistinctly applicable equal burden rules caught by.
Yesterday, the court decided to give horizontal effect to article 34 tfeu on the free movement of goods. Summary of article 34 jurisprudence leading to keck. While article 34 tfeu provides for the removal of national obstacles of a non. The aim of this essay is to examine if the keck1 test is unsatisfactory, too rigid and places too much emphasis on law and fact, rather than market access2 and consider that there are no clear outer boundaries to the article. Not just binding measures implemented by member states, but also promotional campaigns launched by governments. Regular readers of this journal will recall the present authors recent extensive 3. Is article 34 tfeu a provision intended to liberalise intracommunity trade or is it intended more generally to encourage the unhindered pursuit. On the contrary, the same legal questions resurface in the context of different factual circumstances. But the treaty also prohibits member states from imposing customs duties on the movement of goods across borders within the eu under articles 28 and 30. Cvce all rights of reproduction, public communication, adaptation, distribution or dissemination via internet, internal network or any other means are strictly reserved in all countries. Selling arrangements are exempt from article 34 tfeu.
It is settled caselaw that the scope of article 34 tfeu does not extend to the obstacles to trade covered by other specific provisions and that the obstacles of a fiscal nature referred to in article 110 tfeu are not covered by the prohibition laid down in article 34 tfeu see, inter alia, judgment in tatu, c. The aim of this law was to prevent retailers engaging in cut. It is manifestly the case that this was not the intention behind article 34, nor does its. In the 1990s the european court of justice ecj established a distinction between the product requirements and certain selling arrangements in the case of keck and mithouard. Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states. Article 34 of the treaty on the functioning of the european union tfeu prohibits. Considering its importance, and because it gives a good insight into. As mentioned above, article 34s direct purpose is to foster the free movement of goods by removing any obstacles to interstate trade, reading. Adjudicating between the union interest of free movement and member states interests when pursuing noneconomic public policy aims is a delicate task which the passage of time has not diminished. A precedentsetting judgment on the free movement of goods.
Free movement of goods and their use what is the use of it. Critically discuss the interpretation of the prohibition in article 34 tfeu and its interpretation for the regulation of markets question the court of justice has adopted far too wide an interpretation of the prohibition in article 34 tfeu whilst not going far enough in its interpretation of that article to accommodate the right of member states to regulate their own markets and to pursue. These cases and their wider implications for the future scope of article 34 tfeu article 28. The keck decision 2, which attempted to interpret article 34 tfeu, has definitely played an important if not critical role in the evolution of caselaw on this issue, but also has contributed in the intensification of the aforementioned controversy. A few years ago in trailers the ecj declined to extend keck to user arrangements and declared that a measure will be classified as a measure having equivalent. The keck and mithouard case law of the cjeu constituted an important milestone in the effort to develop workable principles for the interpretation of article 34 tfeu in a way that would not jeopardize the ability of member states to regulate their economy and pursue other public policy objectives than promoting trade. Gormley, two years after keck, 19 fordhman international law journal 866, at. French rule violated, amongst other things, article 34 tfeu. Joined cases c26791 and c26891, keck and mithouard, 1993. Pdf free movement of goods and their use what is the use of it. Article 34 prohibits quantitative restrictions quotasqrs and measures having equivalent effect.
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