European Law Journal Volume 2 Issue 3 1996 (Doi 10.1111/j.1468-0386.1996.Tb00027.x) Todd J. Friedbacher - Motive Unmasked - The European Court of Justice, The Free Movement of Goods, and The Search

European Law Journal, Vol. 2, No. 3, November 1996, pp.
226-250
0 Blackwell Publishers Ltd. 1996, 108 Cowley Road, Oxford OX4 IJF, UK
and 238 Main Street, Cambridge, MA 02142, USA
Motive Unmasked: The European Court

of Justice, the Free Movement of Goods,
and the Search for Legitimacy
Todd J FriedbacheP
Abstract: In exempting from scrutiny under Article 30 EC certain measures

constituting ‘selling arrangements’, the author examines whether the European Court
of Justice in Keck and Mithouard and its progeny sought more than mere clarijication
of its jurisprudence on the free movement of goods. To wit, he claims that the Court
was motivated by a sense of waning faith in its institutional legitimacy, initiating in
Keck an attempt to more vigorously police the Community-Member State jurisdic-
tional divide in favour of Member State prerogatives, banishing the Community
judicial and legislative branches from the realm of ‘selling arrangements’. After
critical assessment of this hypothesis and of the Court’s success, afinal section queries
whether the ECJ has adopted similar strategies in the Competition law and services
realms.
I Introduction
The European Court of Justice in Keck and Mithouard’ and its progeny simultaneously
tackled two mounting crises threatening the Court’s effectiveness and esteem in the
Community order: first, jurisprudential confusion arising from its approach to the
European Community’s cornerstone concept of the free movement of goods; and,
second, a sense of waning faith in the Court’s institutional legitimacy.
Exempting from scrutiny under Article 30 EC2 certain measures constituting
‘selling arrangements’, Keck and its progeny were intended to clarify and refine a long
* Associate, Powell, Goldstein, Frazer & Murphy (Washington, D.C.). I wish‘to thank Professor Jules
Stuyck, Professor Walter van Gerven, Nic Lockhart and Stanimir Alexandrov for their advice and
comments. Additionally, I would like to acknowledge the support of the Fulbright fellowship programme,
the Commission for Educational Exchange. Brussels, and the Center for Advanced Legal Studies, K.U.
Leuven, Belgium.
’ Joined Cases C-267 and C-268/91 Bernard Keck and Daniel Mithouard [I9931 ECR 1-6097 (hereinafter
Keck).
Article 30 EC reads as follows: ‘Quantitative restrictions on imports and all measures having equivalent
effect shall, without prejudice to the following provisions, be prohibited between Member States.’ All
Treaty references are to Treaty Establishing the European Community (EC), 7 February 1992, [I9921 1
C M L R 573, incorporating changes madeby the Treaty on European Union (TEU), 7 February 1992, OJ
1992 C 224/1. The TEU amended the Treaty Establishing the European Economic Community, 25 March
1957,298 UNTS 11, as amended by the Single European Act, OJ 1987 L 169/1.
November 1996 Free Movement of Goods
line of judgments prohibiting ‘all trading rules enacted by Member States which are
capable of hindering, directly or indirectly, actually or potentially, intra-Community
trade13. Although bold, Keck harbours substantial ambiguity concerning its precision
and scope, resulting largely from the Court’s characteristic refusal to grant insights
into the motivations behind its decision.
Thus, while other commentary has and will continue to treat the many doctrinal
implications of the ‘selling arrangements’ formulation, this article will search for the
Court’s motivation in its pronouncement, arguing that its primary purpose was to
respond to a legitimacy crisis in its relationship with Member State governments and
courts. In view of this crisis, it is posited that the Court in Keck attempted to more
vigorously police the Community-Member State jurisdictional divide in favour of
Member State prerogatives, banishing the Community judicial and legislative branches
from the realm of ‘selling arrangements’. Identifying such a motivation firmly grounds
the Court as an essentially political institution, suggesting its responsiveness to
external pressures. In addition, motive analysis vests the Court’s jurisprudence with
predictive value, in turn offering greater certainty to those charged with carrying out
the Court’s often protean interpretation. The analysis, however, will also be critical,
focusing on whether the Court has effectively eliminated Community intrusion into
the ‘selling arrangements’ arena and, therefore, whether the decision actually delivers
its fostered claims of legal certainty and relegitimation.
Part I1 of this article will provide a brief introduction to the Court’s jurisprudence
on the free movement of goods, followed by discussion of the basic ‘selling
arrangements’ formulation and its application in later cases. Part 111 will analyse the
degree to which Keck actually represents a bold initiative by the Court. Moving on to
the motivation behind this new development, Part IV is devoted to analysis of Keck as
an example of the Court’s attempt to restore its legitimacy in the eyes of its various
constituencies, followed by a critical review of that attempt. Finally, Part V will briefly
inquire into parallel attempts by the Court to narrow the scope of the Treaty within
the context of Competition law and services.
I1 The Court and Article 30

A Historical Overview
As the cornerstone of the free movement of goods, the Court has long accorded
Article 30, with its prohibition of ‘measures having equivalent effect to quantitative
restrictions’, broad jurisdictional reach, as summarised by the Court in its classic
Dassonville formula, prohibiting ‘all trading rules enacted by Member States which are
capable of hindering, directly or indirectly, actually or potentially, intra-Community
trade’4. Shattering the notion that the Dassonville formula reached only discriminatory
measures, Cassis de Dijon extended the ambit of Article 30 to the prohibition of
restrictive measures equally applicable to domestic and imported products5. After
Cassis, it was clear that any Member State restrictions related to product
characteristics would fall foul of Article 30 in the absence of justification under the
terms of Article 36 EC or in so far as they were proportional and necessary to satisfy
’ Case 8/74 Procureur du Roi v Dussonville [I9741 ECR 837, para 5.

Ibid.
Case 120178 Rewe-Zentrul AG v Bundesmonopolverwaltung fur Branntwein [ 19791 ECR 649 (hereinafter
Cassis de Dijon).
0 Blackwell Publishers Ltd. 1996 221

European Law Journal Volume 2
‘mandatory req~irements’~ of national law relating, among other things, to consumer

protection, culture and environmental preservation7. Further, CinCtheque confirmed
that even purely indistinctly applicable Member State measures require scrutiny under
the Cassis de Dijon rubric, regardless of the fact that domestic products enjoy no
advantage over imports8. Going beyond mere ‘product characteristics’, Oosthoek
broadened the reach of Article 30 to legislation regarding ‘certain forms of advertising
and certain means of sales promotion’, to the extent that the legislation ‘affects
marketing opportunities for . . . imported product^'^.
Beyond these foundational pillars of Article 30 stand judgments in which the Court
was confronted with difficult questions of jurisdictional line-drawing. The Court
increasingly began to address questions of precisely what degree of effect on intra-
Community trade or connection thereto was required to bring a national measure
within the ambit of Article 30. In various scenarios the Court seemed to waver along
an admittedly fine line, failing to distinguish precisely what degree of remoteness or
attenuation from effective impact upon the Common Market brought a measure
within as opposed to without Article 30’s prohibitive sphere. Thus, in this ‘grey area’1°
the Court floundered between either calling the impact/effect too remote to bring
’,
Article 30 into play’ or finding sufficient impact/effect to trigger Article 30, af least at
the thresholdI2. These conflicting13 strains clearly blurred further the distinction
between what was permitted and what was prohibited, with the resulting chasm setting
the stage for Keck.
B Keck: Basic Facts and Holding

Messrs. Keck and Mithouard, managers of two French supermarkets, faced criminal
charges for violations of a French law prohibiting resale of unaltered products at
Before the Tribunal de Grande Instance,
below purchase price (‘resale at a 10s~’)’~.
Ibid para 8.
Although the Article 36 EC list of exceptions is exhaustive, the grounds for exception under Cassis
‘mandatory requirements’ approach are not necessarily closed.
Joined Cases 60 and 61/84 Cinktheque [I9851 ECR 2605.
Case 286/81 Oosthoek [I9821 ECR 4575, para 15 (emphasis added).
l o Steiner, ‘Drawing the Line: Uses and Abuses of Article 30 EEC’, (1992) 29 CMLRev 749, 755.
I I Case 155/80 Oebel [I9811 ECR 1993; Case 75/81 Blesgen [1982] ECR 121 1; Case 148/86 Direction
GknPrale des Imp& et Procureur de la Rkpublique v Forest [I9861 ECR 3449; Case C-69/88 Krantz v
Onivanger der Directe Belastingen [I9901 ECR 1-583; Case C-350/89 Sheptonhurst Ltd. v Newham BC
[I9901 ECR 1-2387; Case C-23/89 Quietlynn Ltd. v Southend-on-Sea BC [I9901 ECR 1-3059.
l 2 Included here are the ‘Sunday-trading’cases, the measures in which the Court accepted could be justified
as proportional. Case 145/88 Torfaen BC [I9891 ECR 3851; Case C-312/89 Union Dkparrementale des
Syndicats CGT de I’Aisne v SIDEF-Conforama [I9911 ECR 1-997; Case C-332/89 Marchandise [I9911
ECR 1-1027; Case C-169/91 Council of the City of Stoke-on-Trent and Norwirh City Council [I9921 ECR
1-6635. See also Case 286/81 Oosihoek [1982] ECR 4575 (justified); Case 382/87 Buet v Ministere Public
[I9891 ECR 1235 (justified); Case C-369/88 GB INNO-BM v Confkdkration du Commerce Luxembourgeois
[I9901 ECR 1-667 (not justified); Case C-369188 Delattre [I9911 ECR 1-1487 (justifiable); Case C-239190
Boscher [I9911 ECR 1-2023 (not justified); Joined Cases C-I and C-176/90 Aragonesa [I9911 ECR 1-4151
(justified); Case C-126/91 Yves Rocher [1993] ECR 1-2361 (not justified).
l 3 See Opinion of Advocate General Tesauro in Case C-292/92, Ruth Hiinermund v Landesapothekerkammer
Baden- Wiiritemberg [1993] ECR 1-6800 (hereinafter Hiinermund). But see White, ‘In Search of the Limits
to Article 30 of the EEC Treaty’, (1989) 26 CMLRev 235.
l4 Law No. 63-628, Article 1 (2 July 1963), as amended by Order No. 861243, Article 32 (1 December
1986).
228 0 Blackwell Publishers Ltd. 1996

Strasbourg, and later on reference to the ECJ, Messrs. Keck and Mithouard argued in
their defence that the French provision contravened Article 3015 essentially on two
grounds: first, that the ‘resale at a loss’ measure eliminated a potential technique for
launching new products onto the French market; and, second, that it gave French
manufacturers, not subject to the prohibition of the French law, a competitive edge
over French resellers such as Messrs. Keck and Mithouard16.
On reference to the ECJ, the operative portion of the judgment begins with a
restatement of the broad Dassonville formula, construing Article 30 to prohibit ‘any
measure which is capable of directly or indirectly, actually or potentially, hindering
intra-Community trade’”. Although recognising that the French ‘resale at a loss’
provision might, in fact, through its prohibition of a particular method of sales
promotion, restrict the volume of sales, including those from other Member States, the
Court saw the essential question as ‘whether such a possibility is sufficient to
characterize the legislation in question as a measure having equivalent effect to a
quantitative restriction on imports’ within the meaning of Article 30l8. In light of the
absence of purpose on the part of the French to regulate inter-state trade with the
provision in question19, as well as the ‘increasing tendency of trad,ers to invoke Article
30 . . . as a means of challenging any rules whose effect is to limit their commercial
freedom’20,the Court considered it particularly necessary to review anew its classic
Dassonville-Cassis de Dijon jurisprudence. In its now famous recital 16, the Court then
pronounced that ‘contrary to what has previously been decided, the application to
products from other Member States of national provisions restricting or prohibiting
certain selling arrangements’ is not such as to violate the broad Dassonville formula,
provided the measures apply equally to all traders operating within the national
territory and affect equally the marketing of all products2’. Given the aforementioned
provisos, the Court essentially held that overalP2 access to the market was neither
prevented nor impeded any more for imported than for domestic products23.
In short, it is submitted that Keck establishes a rebuttable p r e ~ u m p t i o nthat
~~
national measures governing ‘selling arrangements’ fall outside the scope of Article 30.
Is The defendants also unsuccessfully challenged the compatibility of the French provision with the
principle of non-discrimination as expressed in Article 6 EC. See Keck, supra n I , paras 7-8.
l6 Reich, ‘The “November Revolution” of the European Court of Justice: Keck, Meng and Audi Revisited’,
(1991) 31 CMLRev459,460; Moore, ‘Re-visiting the Limits of Article 30 EEC’, (1994) 19 ELR 195. 196.
Keck, supra n 1, para 1 I , citing Dussonville, supra n 3, para 5.
l8 Keck, supra n I , para 13.
l 9 Ibid para 12.
2o Ibid para 14.
Ibid para 16.
22 Advocate General Van Gerven observes that the French law in Keck could affect importers wishing to
launch a product onto the French market, where in the same situation a domestic manufacturer would not
be affected, postulating that the Court must therefore have taken an ‘overall assessment’ of the measure’s
equally burdensome effect, rather than an assessment of individually burdensome scenarios. Opinion of
Advocate General Van Gerven in Joined Cases C-401 and C-402/92 Tankstation ‘t Heukske v.0.J [I9941
ECR 1-2199, para 23 of his opinion (hereinafter Tunkstation). The Court subsequently appears to have
adopted this distinction. See Joined Cases C-418/93, C-419/93 et al., Semeraro Cusa Uno. judgment of 20
June 1996, para 24, not yet reported.
23 Keck, supra n 1, para 17.
24 Since only ‘certain’ ‘selling arrangements’ measures fall outside the scope of Article 30 (Keck. ibid para
16), traders may be able to establish that a particular measure is not one of the ‘certain’ measures
intended. See Reich op cit n 16,487; Opinion of Advocate General Van Gerven in Tankstation. supra n 22,
para 24, footnote 53.

That is to say, the burden has been shifted to the trader claiming a breach of Article 30
to establish that the Member State ‘selling arrangements’ measure at issue: (i) actually
governs product characteristics or requirements, in turn establishing a prima facie
violation of Article 30 necessitating full consideration of justificatory grounds under
Article 36 or Cassis de Dijon’s ‘mandatory requirements’ test25; (ii) violates Keck’s
proviso that the ‘selling arrangements’ formulation benefit only non-discriminatory
provisions26; or, (iii) affects inter-state trade through its application to cross-border
sit~ations~~.
This reading limits Keck’s applicability to situations lacking an inter-state element,
and explains the basis for rebuttal of the presumptive applicability of Keck to
measures constituting ‘selling arrangements’; namely, a showing of the cross-border
effect of the particular national measure at issue. As the ‘resale at a loss’ provision was
a criminal law, its effect, as measured by its ability to deter with criminal punishment,
was quite literally jurisdictionally limited to resellers operating on French soil. To the
extent that a foreign manufacturer might find it difficult to locate a French reseller
willing to risk criminal sanctions by marketing the manufacturer’s product below cost,
the ‘resale at a loss’ provision does in fact exhibit some effect upon inter-state .trade.
25 See Case C-317192 Commission v Germany [I9941 ECR 1-2039, para 12. In this case, although a German
law requiring that medicinal product packaging show an expiry date of 30 June or 31 December involved
marketing, it also required importers to alter packaging specifically for the German market. See also Case
C-470193 Verein gegen Unnesen in Handel und Gewerbe Koln e. I.: v Mars GmbH [I9951 ECR 1-1923. para
13 (hereinafter Mars GmbH). In Mars GmbH, a German measure prohibiting promotional campaigns
offering the consumer additional value (‘+lo’%,extra’ or ‘4 for the price of 3’), although indistinctly
applicable and related to marketing, violated Article 30 because of its potential to ‘compel the importer to
adjust the presentation of his products according to the place where they are to be marketed . . .’. See also
Case C-3 15/92 Verband Sozialer Wetthewerb v Clinique Laboratories and Estte Lauder Cosmetics [I9941
ECR 1-317 (hereinafter Clinique). In Clinique, it was held that Keck was inapplicable to a German
measure which, while in prohibiting the use of the term ‘Clinique’ for a non-medicinal product affected
the product’s advertising, also posed product requirements, mandating that the manufacturer actually
alter the product. Clinique’s peculiar ‘marketing mix’ leaves a significant gap in Keck’s coverage, and
arguably reshifts the burden to prove a non-violation of Article 30 back to the Member State. For
discussion, see Reich op cit n 16, p 471; Roth, ‘Report of Joined Cases C-267 and C-268191, Keck and
Mithouard; Case C-292192, Hiinermund’, (1994) 31 CMLRev 845, 852; Stuyck, ‘Observations: L‘Lrret
Keck et Mithouard (vente a perte) et ses consequence sur la libre circulation des marchandises,’ (1994)
CDE Nos. 3 4 , 435. 452-54; Todino and Luder, ‘La jurisprudence “Keck” en matiere de publicite: Vers
un marche unique inacheve?’, (1995) I Revue du March6 Unique EuropPen 171, 182-83.
2h Keck, supra n I , para 16; Opinion of Advocate General Van Gerven in Tankstation, supra n 22 para 24,
footnote 53. Given multiple references to the absence of ‘purpose’ on the part of the Member State to
affect inter-state trade with the measure in question (Keck, supra n 1, paras 12 and 14), it is possible that
a showing of discriminatorypurpose might trigger Keck‘s proviso. In a recent case, the Court, citing Keck,
held Article 30 inapplicable to a Greek requirement that processed milk for infants be sold exclusively by
pharmacies, regardless of the fact that there was no Greek production of the good. Case C-391/92
Commission v Hellenic Republic [I9951 ECR 1-1621, paras 15-17. At para 18 the Court echoed its Article
95 EC jurisprudence, stating that the lack of domestic production would only raise the spectre of
discrimination ‘if it was apparent that the legislation at issue protected domestic products which were
similar to processed milk for infants from other Member States or which were in competition with milk of
that type’. For discussion of the interaction of Article 95 with Article 30, particularly in light of the
‘selling arrangements’ formulation, see Chalmers, ‘Repackaging the Internal Market-The Ramifications
of the Keck Judgment’, (1994) 19 ELR 385, 398401.
27 Stuyck op cit n 25, p 455. As Stuyck observes, ‘[ill me semble qu’on peut eviter des consequences
absurdes de la nouvelle norme de “Keck et Mithouard”, notamment l’inapplicabilite de la regle de Cassis
de Dijon a une situation veritablement transfrontaliere, en la limitant aux reglementations visant les
modalitis de vente a I’inthieur du territoire d u n Etat membre . . .’_See also Reich op cit n 16, p 487.

However, this cross-border effect does not flow from any sanctioning influence of the
provision itself, and thus the Court in Keck arguably saw it as lacking any cross-border
effect.
This ‘cross-border’ interpretation is strengthened by the Court’s recent judgments in
~ ~ . Investments involved an Article 59 EC
Alpine Investments28and B o ~ m a n Alpine
challenge by a Dutch company established in the Netherlands to a Dutch law
prohibiting the sales technique of ‘cold calling’ potential customers located both
within and without Dutch borders. Although the Court ruled that the Dutch law
constituted an ultimately justifiable violation of Article 59, its importance in the
context of the free movement of goods lies in the treatment of the Dutch government’s
attempt to preserve its law from the scope of the Treaty by reference to Keck’s ‘selling
arrangements’ formulation. Had the Court so desired, it could have narrowly denied
the applicability of Keck to Alpine Investments as a factual matter, on the grounds that
the more proper analogy to the free movement of goods for an Article 59 Member
State restraint on the provision of services by its own nationals is to an Article 34
export restrictions judgment, rather than to an Article 30 import restrictions case. In
refusing to apply ‘selling arrangements’ in Alpine Investments, however, the Court
expressly distinguished the Dutch ‘cold calling’ law from Keck’s provision prohibiting
‘resale at a loss’ by stating that only in the former was there an effect on inter-state,
cross-border trade’O. It would thus appear that the Court in Alpine Investments
amplified the notion that Keck’s ‘selling arrangements’ formulation applies only to
non-cross-border situations.
Similarly, the Court in Bosman declined to apply a rubric comparable to Keck’s
‘selling arrangements’ formulation to remove professional football rules governing the
transfer of players between clubs from the ambit of Article 48 EC (guaranteeing the
free movement of workers). Rather than rejecting outright the analogy between
Articles 48 and 30, however, the Court distinguished Keck from Bosman on the basis
of cross-border effect. Although the rules at issue in Bosman applied to transfers
between clubs within the same Member State, they also ‘directly affect[ed] players’
access to the employment market in other Member States and [were] thus capable of
impeding freedom of movement for workers’, defeating the analogy to the ‘resale at a
loss’ provision at issue in Keck”.
In any event, since announcing its judgment in Keck, the Court has used the ‘selling
arrangements’ formulation t o exempt from the scope of Article 30: professional
regulations prohibiting excessive outside advertising by pharmacists for essentially
non-medicinal products sold by pharmacie~’~;national measures prohibiting Sunday
trading33; Member State provisions regarding mandatory closing hours34; a national
28 Case C-384/93 Alpine Investments BV v. Minister van Financien [I9951 ECR 1-1 141 (hereinafter Alpine
InvestmenIs).
29 Case C-415193 Union Royale Belge des SociPtPs de Football Association ASBL and others v. Jean-Marc
Bosman and others, judgment of 15 December 1995, not yet reported (hereinafter Bosman).
lo Alpine Investments, supra n 28 para 38. The Court here held that the Dutch prohibition ‘directly affects
access to the market in services in the other Member States and is thus capable of hindering intra-
Community trade in services’. Note also the Court’s observation in para 24 that ‘the prohibition at issue
applies to the offer of cross-border services’.
Bosman, supra n 29, para 103. On this point, the Court also expressly referred to its judgment in Alpine
Investments, supra n 28.
’2 Hunermund, supra n 13.
j3 Semeruro Casa Uno, supra n 22; Joined Cases C-69 and C-258193 Punta Casa SpA [I9941 ECR 1-2355.
j4 Tankstation,supra n 22.
B Blackwell Publishers Ltd. 1996 23 1

rule banning television advertising by the distribution sector35; a Member State

regulation requiring that processed milk for infants be sold exclusively by
pharmacies3$ and, national legislation limiting the sale of tobacco products to
authorised retailers3’.
I11 Keck - A New Direction

A Critical View
Before assuming that Keck is particularly novel or bold, it is necessary to ask whether
the ‘selling arrangements’ formulation is merely a clarification of established doctrine.
In developing his own definition of a measure having equivalent effect to a
quantitative restriction under the terms of Article 30, White, for instance, encouraged
the Court to recognise explicitly what he saw as an already implicit ‘distinction
between the characteristics required of imported products and the circumstances in
which they may be sold’, exempting the latter from scrutiny38. The ‘selling arrange-
ments’ formulation could be read as a variant of White’s proposal, and thus as merely
an attempt by the Court to make explicit that which was already implicit in its cases
on the free movement of goods, rather than as a venture into new jurisprudential
territory.
Aside from whether the substance of ‘selling arrangements’ is new, there is the
question of whether it achieves a rule-like form fresh to Article 30 jurisprudence. If
Keck introduces a change in the Court’s approach, it is presumably one which provides
a hardened distinction between those Member State restrictions falling within and
without the scope of the Treaty, achieving overall a narrowing of Article 30 in the
interests of clarity, legal certainty and predictability - the hallmarks of a rule-based
approach39.
It is, however, questionable whether Keck’s exclusion of ‘selling arrangements’ from
the scope of Article 30 in fact represents a change, or whether it has merely
accomplished a rhetorical shift, offering the appearance of a rule-based approach -
complete with clarity and certainty - while realistically only pushing the unpredictable
balancing of interests from one formula, represented in Dassonville, Cassis de Dijon
and their progeny, to yet another equally evasive and obscurely formulated test40.
This balancing of various factors may indeed be inevitable, as the attempt to
formulate a rule-based approach to Article 30 founded on the concept of ‘selling
arrangements’ strives toward an equilibrium which is neither under-inclusive (thus
divesting it of any relevance) nor over-inclusive (thus weakening the Court’s
resistance to other types of restrictive Member State measures). Wils, in fact, argues
35 Case C-412193 Suciet6 d’lmporlatiun Eduuard Leclerc-Siplec v. TFI Publicit6 SA and M6 PublicitP SA
[1995] ECR 1-1 79 (hereinafter Leclerc-Siplec).
3h Commission v Hellenic Republic, supra n 26.
27 Case C-387193 Criminal Proceedings Against Giorgiu Dumingu Banchero [ 19951 ECR 1-4663.
3x White up cit n 13, pp 24647.
2y Mortelmans, ‘Article 30 of the EEC and Legislation Relating to Market Circumstances: Time to
Consider a New Definition?’, (1991) 28 CMLRev 115, 129; Steiner up cit n 10, p 767; Reich up cit n 16, p
470. For criticism of the ‘mechanical’ application of Dassonville, see also White up cif n 13; Opinion of
Advocate General Van Gerven in Case 145188 Turjuen BC v B & Q [I9891 ECR 3851.
4” Reich op cit n 16, pp 480, 470; Wils, ‘The Search for the Rule in Article 30 EEC: Much Ado about
Nothing?, (1993) 18 ELR475,490-91.

that at the present stage of integration, any attempt at a rule-like approach devoid of
under- or over-in~lusiveness~~ is futile. As integration has progressed, the ‘stakes’ of
Article 30 cases have concomitantly increased: disputed Member State restrictions
now lie in intensely contested regulatory spheres, with particularly high value being
attached to local control, while the high level of Community integration amplifies the
‘anti-integrationist’ effect of a measure which at an earlier stage of integration would
scarcely have been described as r e ~ t r i c t i v e Making
~~. this high-stakes decision, even if
expressed as the relatively rule-like question of whether a measure is o r is not
regulating a ‘selling arrangement’, necessarily requires, at least in its formative stage,
a balancing of the aforementioned interests in order to reach an answer which avoids
the trappings of under- or over-inclusiveness. That is to say, because only ‘~ertain’~’,
unspecified ‘selling arrangements’ clear Article 30, there do exist ‘some regulations
concerning selling arrangements, even if indistinctly applied, [which] must be
regarded as hindering interstate trade . . .’, thus still falling within the prohibition of
Article 3044. Unless and until the Court more thoroughly parses out the parameters
of ‘selling arrangements’, the potential for under- or over-inclusiveness will remain
high.
Ultimately, the question is whether the Court in Keck has actually, definitively,
found in ‘selling arrangements’ the clarity, legal certainty and predictability which its
former critics had encouraged. Or do we have a standard in rule’s clothing?
B Textual and Contextual Change

In spite of the various protestations detailed above, the Court in Keck clearly signals
its intention to alter its course through the use of three techniques.
First, in recital 16 of the judgment the Court expressly states that the ‘selling
arrangements’ formulation is ‘contrary to what has previously been decided’. One
might - and rightfully so - lament the Court for its vagueness and failure to specify
precisely which part of its Article 30 jurisprudence is overruled by this statement, but
that is quite apart from questioning whether the Court has definitively signalled its
desire to depart from (portions of) its past and carve a new path forward. The very
infrequency of this practice alone suggests that its deliberate use marks a significant
departure45.
Secondly, and perhaps less self-consciously, the Court does not refer to past cases,
beyond Dassonville, as established evidence that the scope of Article 30 does not reach
‘selling arrangements’. Rather, the Court .regards the exclusion of ‘selling arrange-
ments’ from the scope of Article 30 as self-evidently flowing from a type of ‘first
principles’ approach to the free movement of goods as expressed in Dassonville. The
41 Wils’ term for under- or over-inclusiveness is ‘error’. Wils op cit n 40. p 480.
42 Ibid p 479, footnote 14.
43 Krck, supru n 1, para 16.
44 Roth op cit n 25, p 853. See also Reich op cit n 16. pp 471,487; Opinion of Advocate General Tesauro in
Hiinermund. supru n 13. Advocate General Tesauro indicates that some rules regarding marketing may
still be subject to Article 30 under a Cussis dr Dijon-like review.
45 Keck represents only the second time in the Court’s history that it has expressly overruled itself. See Case
C-10/89 CNL-Sued Y H A G CF [1990] ECR 1-371I , overruling Case 192/73 Van Zuylen v H A G [I9741
ECR 731. See Arnull, ‘Owning Up to Fallibility: Precedent and the Court of Justice’, (1993) 30 CML Rev
241. 265.

Court refuses, in a technique considered by Bengoetxea as common to its

jurisprudence, to recognise that somewhere between 1974’s Dassonville and 1993’s
Keck there lies a normative gap, the filling of which necessarily requires that
‘choices . . . be made concerning decisional leeway’46. In scenarios of this type,
Bengoetxea postulates that the very clarity of the Court’s conclusion is in fact a ‘device
to disguise interpretati~n’~~. Whereas ‘a heuristic approach to decision-making would
reveal a situation of doubt and the recourse to different interpretative techniques in
order to solve the doubt, . . . the presentation of the decision to the public only talks
about clarity. The decision is justified as if there were no problem regarding the
formulation of the premises leading to the decision . . .’48.
Paradoxically, clarity and simplicity function as cloaking devices, making a ‘hard’
case, i.e., one requiring the application of discretion and interpretation, appear to be
an ‘easy’ case, i.e., one in which the decisional bases are ‘being almost unreflectively
applied’49. This device suggests that the Court, in dressing its ‘selling arrangements’
language in an alluring and deceptively simple form, is taking a new direction in its
approach to Article 30.
Finally, the Court’s decision symbolises a remarkable departure from its earlier
tendency to declare a particular measure, while violative of Article 30, ultimately
justified under Cassis de Dijon. Several reform-minded commentators have expressed a
preference for the Court to retain a broad reading of the jurisdictional ambit of Article
30 as interpreted through the Dassonville formula, favouring instead an overhaul of
Cassis de Dijon’s ‘mandatory requirements’ justificatory test50. The advantage to this
approach is the maintenance of an effective jurisdictional basis for the Court to
monitor any arguably restrictive Member State action and demand justification in the
case of an Article 30 breach.
In fact, however, it is questionable whether all measures classified by the Court as
regulating ‘selling arrangements’ would indeed be justifiable under the Cassis de Dijon
test if they were held at the threshold to violate Article 30. The ‘mandatory
requirements’ test was, after all, aimed at granting relief to necessary, proportional
Member State obstacles arising from disparities between the legislation of the various
Member Statess1. Encouraging the Court to adopt the ‘selling arrangements’
formulation, however, implies that Member State measures so classified do not violate
Article 30 precisely because it is the existence of these measures, and not the difference
between the measures of particular Member States, which in some way harms
46 J. Bengoetxea, The Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence
(Clarendon Press, 1993) 205-207.
47 Ibid p 206.
4R Ibid pp 206207.
49 Ibid pp 185-186.
so See Gormley, ‘Recent Case Law on the Free Movement of Goods: Some Hot Potatoes’, (1990) 27
CMLRev 825, 829-30; Gormley, ‘Report of Case 145/88, Torfaen Borough Council v B & Q PLC, (1990)
27 CMLRev 141, 149-50; Gormley, ‘Actually or Potentially, Directly or Indirectly’? Obstacles to the Free
Movement of Goods’, (1989) 9 YEL 197, 207; Gormley, ‘Some Reflections on the Internal Market and
Free Movement of Goods’, (1989) LIEI 9, 15. See also Reich op cit n 16, p 472; Arnull, ‘What Shall We
Do on Sunday?, (1991) 16 ELR 112.
s 1 Cassis de Dijon, supra n 5 , para 8. See also Due, ‘The Practice of the European Court of Justice-A Factor
in the Promotion of Integration’, (1992) 36 Scandinavian Studies in Law 77.86; Lenaerts, ‘Some Thoughts
about the Interaction between Judges and Politicians in the European Community’, (1992) 12 YEL 1,
14-15.

importss2. The Court may have realised that those measures classified as regulating
‘selling arrangements’, if held to be violative of Article 30, might not in fact be
susceptible to ju~tification~~,
and that therefore the only option available, in order to
leave these measures under Member State control, was to classify them as outside the
scope of Article 30 altogether. This observation, however, only purports to answer why
the Court chose a particular form for the ‘selling arrangements’ classification, and not
why it chose to create and express that formulation in the first instance. For the latter,
we turn to the tools of motive analysis.
IV Motive Analysis
The possibility of distilling the Court’s motive carries distinct appeal; the danger of
motive analysis, however, lies precisely in this appeal. That is to say, ‘motivations’ are
appealing because they purport to discover a ‘deeper truth’ by delving between the
lines - a truth which, as the fruit of an essentially non-doctrinal analysis, cannot be
‘scientifically’ (i.e., empirically) refuted, but then again also cannot be ‘scientifically’
provens4. That said, the benefit of motive analysis, from an integration theory
perspective, is twofold: first, its ability to locate the Court in the ‘larger political
landscape, offering some insight into how the Court as an institution affects that
landscape and inversely how that landscape affects the institutions5; and, secondly, its
ability to supplement the technical analysis of a case (Keck) or doctrine (‘selling
arrangements’) in order to better predict the direction the Court will take in future.
This is particularly valuable for a Court which, in comparison with its American
counterpart, is generally short on elaborating for the reader the reasoning behind its
decisions.
A An Indistinct Malaise
Commentators have long alluded to an indistinct malaise in the Court’s relations with
Member State governments, courts and citizens, caused by its expansive approach to
market integration. Recommended solutions call generally for the Court to reduce
both its own judicial interference with, and Community legislative intrusion into,
certain jurisdictional fora apparently better left to the Member States. Whatever the
specific tenor of the alleged intrusion and the proposed framework for its resolution,
however, each call to discipline inevitably boils down to the perception that the Court
needs to improve its legitimacy in the eyes of its various ‘constituencies’, lest it risk a
52 White op cif n 13, p 246; Weatherill, ‘The Free Movement of Goods: A Survey of the Decisions of the
Court of Justice in 1991’, (1992) 17 ELR 421,429; Mortelmans op cit n 39, p 126; van der Woude, ‘The
Limits of Free Circulation; the Torfaen Borough Council Case’, (1990) 3 Leiden Journal of International
Law 57, 62. While none of these authors actually uses the term ‘selling arrangements’, the term
‘marketing circumstances’ (as opposed to ‘product characteristics’) is generally used, which for purposes
of the point argued here is sufficiently analogous.
53 In Hiinermund, supra n 13, Advocate General Tesauro suggests at para 30 of his opinion that the national
measure at hand could not be justified under the Cassis de Dvon test. See also Advocate General Jacobs
in Leclerc-Siplec, supra n 35, paras 56-62 of his opinion.
54 See Weiler and Lockhart, “‘Taking Rights Seriously” Seriously: The European Court and Its
Fundamental Rights Jurisprudence, Part I’, (1995) 32 CMLRev 51,68-69.
55 See Slaughter Burley, ‘New Directions in Legal Research on the European Community’, (1992) 31 JCMS
391,393-96.

revolt against the Community’s judicial and legislative agendas. In the interest of
achieving a more thorough understanding of the Court’s dilemma, it may be helpful to
briefly identify the various arguments behind the call for the Court to combat its
legitimacy crisis:
Application of the ‘spirit’ of subsidiarity. While no ~ o m m e n t a t o claims
r ~ ~ a specific
justiciable violation of Article 3b EC by the Court or Community legislator, each
pleads the spectre of subsidiarity as a call to the Court to discipline itself and the
Community legislature5’.
Remedying the ‘democracy de5cit’. In this view, a narrowing of the judicial role is
recommended as consistent with the Community’s value of democratic
principle^^^.
Member State judicial audiences. Several commentators emphasise the preventative
goal of restricting the scope of Article 30 in order to maintain effective cooperation
with Member State courts, seen as vital to the ECJ’s authority59.
The era of effective political institutions. This view heralds the propriety of curbing
judicial activism in an era when the Community’s political institutions function
with relative efficiency, in comparison with the need for judicial activism in, an
earlier time when the political institutions were frequently paralysed by an undue
emphasis on unanimity60.
Public opinion. A 1992 study of mass public perceptions of the Court attempts to
empirically ‘paint a portrait of a court with only precarious legitimacy’61,based
on responses to a survey suggesting a tendency for individuals to refuse to ‘accept’
controversial Court pronouncements with which they do not agree.
B A ‘Distinct Malaise’?
At the risk, however, of engendering anathema in the face of boundless opinions
warning of the Court’s legitimacy woes, it would seem that to conclude that the Court
in Keck was combatting a legitimacy crisis requires first that we establish the actual
existence of the crisis.
56 Except possibly Weatherill, as discussed infra text notes 9 6 9 7 .
57 Chalmers up cit n 26, p 274; Weatherill op cit n 52, p 432; Reich op cit n 16, p 477; Reich, ‘Competition
between Legal Orders: A New Paradigm of EC Law’, (1992) 29 CMLRKV861, 890; H . Rasmussen, On
Law und Policy in the European Court of Justice (Martinus Nijhoff, 1986) 382.
5 8 Slaughter Burley op cit n 55, p 394 writes that ‘if the red democracy deficit . . . is the weakened control
by nutionulpurliuments, then the ECJ could perform the historic judicial role of protecting minority rights
by consciously reversing course and supporting national governments as “transitional minorities” in the
emerging political Community’. See also Burley, ‘Democracy and Judicial Review in the European
Community’, [I9921 University of Chicago Legul Forum 81. 87- 88 .
5L) Weatherill op cit n 52, p 430 argues that raising ‘the Article 30 threshold may help to forestall the risk of
Community law obtaining “a reputation akin to that of patriotism” and Article 30 becoming “a
busybody’s charter”. indeed, it would undermine the development of the Community legal order were
national judges to perceive Community law submissions as counsel crying wolf‘; See also Gormley (1990)
op cit n. 50, p 825, footnote 2; Marquardt, ‘Deficit Reduction: Democracy, Technocracy, and Constitu-
tionalism in the European Union’, (1994) 4 Duke Journal of Comparative and International Law 265,275.
h0 Arnull, ‘Judging the New Europe’, (1994) 19 E L R 3, 6, 13. See also Mancini, ‘The Making of a
Constitution for Europe’, (1989) 26 CMLRev 595, 613. Arnull writes that in ‘a Community in which the
political institutions are functioning reasonably effectively and the Member States are carrying out
regular reviews of the Treaties, the need for, and even the legitimacy of, an overly activist approach by the
Court of Justice may increasingly come to be questioned’.
Gibson and Caldeira, ‘The European Court of Justice: A Question of Legitimacy’, (1993) 14 ZeitschriJ
fur Rechts.so:iologie 204, 205.

1. Mass public opinion

As the argument goes, ‘a constitutional court cannot for any long period run either
too far ahead of or too far behind the fundamental political and social currents of a
society without losing its credibility’62. A recent study by Gibson and Caldeira
purporting to empirically establish the ‘low institutional legitimacy’ of the Court in
the minds of European citizens calls into question the Court’s ability to gain
compliance with unpopular decisions63. While not denying the value of this study in
recognising, through the validation of the role of public opinion, that the Community
is more than ‘constitutional law without p o l i t i ~ s ’ the
~ ~ ,obvious question it raises is
whether in fact a court should be overly concerned with public opinion. Aside from
the fact that, as Gibson and Caldeira concede, ‘few citizens ever have the opportunity
to comply or not to comply with an edict of the Court’, since in effect court
pronouncements are imposed upon thembS, the legitimacy of the judicial function
quite ironically lies precisely in the bench’s counter-majoritarian bias, i.e., ‘its ability to
protect minorities against majoritarian political, legal, economic, indeed societal
pressure and w i 1 P . Thus, even if the Gibson and Caldeira study supports the notion
of a legitimacy it is unclear whether the Court would (or should) respond
remedially.
2. Member State governments and courts

While it would seem terribly difficult for 350 million Europeans to organise non-
compliance with an ECJ judgment in any meaningful way, relatively speaking it
should be easier for 15 Member States to stage a revolt. Therefore, concern for the
Court’s legitimacy in the eyes of Member State governments and courts seems more
relevant in analysing whether a crisis ensues. Although Rasmussen tracks what he sees
as rejection by Member State governments and judges of the Court’s ‘integration bias’,
many others actually marvel at the relative ease with which the Court has pursued its
agenda, and at the lack of any meaningful organisation against that agenda at the
Member State leveP. As Weiler recognises:
The interesting thing about the Community experience, and this is where it does not share the
experience of other federative polities, is that despite the massive legislative expansion of
b2 Gulmann, ‘Methods of Interpretation of the European Court of Justice’, (1980) 24 Scandinavian Studies
in Law 187,203.
63 Gibson and Caldeira op cir n 61, pp 204, 206.
64 Shapiro, ‘Comparative Law and Comparative Politics’, (1980) 53 Southern California Law Review 537,
538.
6s Gibson and Caldeira op cir n 61, p 217.
66 Cappelletti, ‘Is the European Court of Justice “Running Wild”?’, (1987) 12 ELR 3, 6 . See also Burley op
cil n 58 ( I 992), p 86.
67 Presumably as an example of the kind of overreaching that explains negative public reaction to the
Court, Gibson and Caldeira point to the Court’s development of a fundamental rights jurisprudence.
Gibson and Caldeira op cir n 61, p 206. It is puzzling that the authors see the Court’s fundamental rights
decisions as potentially engendering public opposition, since the Court has used this jurisprudence to
profect individual rights from encroachment by the Community. See generally Weiler and Lockhart op cir
n 54.
68 Weiler, ‘Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of
Justice in the Arena of Political Integration’, (1993) 31 J C M S 417, 435, 429, where it is argued that
Member States in fact generally accepted Cassis de Dijon and its progeny because these cases ‘actually
accorded and accord[ ] with Member State and Community interests. Although annoying to this or that
Member State in concrete situations, the internal market jurisprudence . . . advanced their collective

Community jurisdiction/competences/powers and the collapse of constitutional guarantees

against that expansion, there had not been any political challenge or crisis on this issue from
the Member States other than on an udhoc basis69.
Furthermore, one could point to several aspects of the Treaty on European Union
as validating the ECJ’s legitimacy, such as its endorsement of both the Court’s
fundamental rights jurisprudence in Article F, TEU, and the Court’s view on
Parliament’s status in actions to annul in Article 173, as well as the Treaty’s allocation
of several new powers of review to the
That said, however, Jacque and Weiler assert that a key change in Community
decision-making - namely, the shift to majority voting in many substantive areas - has
raised the possibility of a looming crisis in the form of revolt by those Member States
unhappy with being on the losing side of a majority vote as well as being the
subsequent subjects of the Court’s enforcement j u r i ~ d i c t i o n Evidence
~~. of the seeds of
such a revolt might be construed from the Member States’ attempt in Article L, TEU
to exclude the Court from review of measures in the fields of foreign and security
policy, and justice and home affairs72. Indeed, in the face of this very real possibility,
Weiler and others see the allocation of competences between the Community and.the
Member States as an increasingly heated area of dispute, with the Court’s salvation
lying in ejj2ctive policing of the Community-Member State divide7’.
C Legitimacy
In view of this concern for the Court’s legitimacy, could it be that the ECJ was
motivated to narrow the scope of Article 30 in the interest of preserving or perhaps
even restoring its legitimacy? The literal effect of Keck, after all, is that measures
concerning (certain) ‘selling arrangements’ will remain within the domain of the
Member States, and consequently out of the reach of the Moreover,
commentators have long warned of the threat to the Court’s credibility stemming from
its rather disingenuous use of Article 30 to invalidate Member State measures devoid
of any genuine cross-border effect on trade. As such, they argue that the Court should
inject an inter-state element into its analysis75.Indeed, some have suggested that Keck
agenda.’ See also Weiler, ‘The Transformation of Europe’, (1991) 100 Yule LJ 2403, 2425; Jacque and
Weiler, ‘On the Road to European Union-A New Judicial Architecture: An Agenda for the
Intergovernmental Conference’, (1990) 27 CMLRev 185, 201; Cappelletti op cit n 66, pp 10-12; Gulmann
op cit n 62, p 204; Gibson and Caldeira op cit n 61, p 206. But see Arnull op cit n 60, p 11. Even
Rasmussen recognises that Member State governments and courts, as the most significant ‘countervailing
powers’, have provided more positive than negative ‘policy inputs’. Rasmussen op cit n 57, p 279 et seq.
h9 Weiler (1993) op cit n 68, p 435.
7” Arnull op cit n 60, pp 13-14.
7 1 Jacque and Weiler op cit n 68, pp 20G201.
l 2 Arnull op cit n 60, p 13; Weiler (1993) op cit n 68, p 444.

7 3 Burley op cit n 58, p 87-88 argues that an ‘even more powerful way for the ECJ to help alleviate the
democracy deficit . . . is for the court to safeguard the current lines of division between Member State
governments and Community organs as a means of ensuring zones of autonomy for the component parts
of the newly emerging whole’. See also Jacque and Weiler op cit n 68, pp 201-203; Weiler (1993) op cit n
68, p 436.
l4 The Court will, of course, retain jurisdiction to the extent that it is refining the ‘selling arrangements’
formulation.
7 5 Gormley (1989) YEL op cit n 50, p 199; Weatherill op cit n 52, p 429; Steiner op cit n 10, p 759.

clarifies earlier botched attempts76 by the Court to interpose the requirement of an

inter-state effect on trade as a trigger for Article 3077, representing precisely the
advocated protection of Member State prerogatives falling along the Community-
Member State jurisdictional divide.
In light of this theory, the effect that casting measures governing ‘selling
arrangements’ outside the scope of Article 30 has upon the competence of the
Commission and Council to legislate in the area is perhaps the most significant ‘proof’
supporting the hypothesis that ‘legitimacy’ lies at the heart of the Court’s reasoning.
An analysis of the Court’s use of Cassis de Dijon’s ‘mandatory requirements’
concept to justify Member State regulations otherwise violative of Article 30 illustrates
that it was developed precisely to signal the Commission7* as to which substantive
areas the Court considered it both jurisdictionally appropriate and integratively
necessary to initiate harmonisation l e g i ~ l a t i o nInversely,
~~. by explicitly leaving certain
‘selling arrangements’ outside the scope of Article 30 altogether, the Court may be
signalling the Commission that it is neither within its jurisdiction nor necessary from an
integrative perspective to introduce harmonisation legislation80. From the standpoint
of restoring legitimacy in the eyes of its constituents, Keck would appear to hold great
promise, with the Court arguably denying itself scrutiny of measures identified as
‘selling arrangements’ as well as denying the Community legislative jurisdiction within
this sphere.
The paradox of this situation lies in the fact that while integration is progressing in
favour of the Community, Keck would represent ‘a retreat of primary Community law
from [the internal market’s] regulation’81. Although puzzling, this paradox is
essentially the ‘integration hypothesis’ introduced in another context by Hirschmans2,
applied to the Community by Weilers3, and summarised by Reich as follows: ‘[Tlhe
more the Community jurisdiction expands, the more Member States are keen to keep
7h See in particular Case 155/80 Orbel [198 I] ECR 1993; Case 75/8 1 Blcsgrn [ 19821 ECR 12 1 I ; Case 148185
Forest [I9861 ECR 3499: Case C-69/88 Krunrr [I9901 ECR 1-583; Case C-350/89 Shepronhurst [I9901 ECR
1-2387;Case C-23/89 Quiet/.vnn [1990] ECR 1-3059.
77 Stuyck posits that in order to avoid the apparent consequence of Keck that Cussis de Dijon no longer
applies to any truly cross-border situations, one need assume that Keck is limited to ‘selling arrangement’
measures aimed at intra-state trade. Stuyck op cit n 25, p 455. See also Reich op cit n 16, 471 who argues
that ‘[ilnterpenetration of markets cannot be achieved without a producer being able to use a marketing
concept which is successful in one country . . . also in another Member State . . . [ q h e rationale of Cu.s.sis
is valid for product-related rules as well as for “selling arrangements” in a dynamic sense’.
7H The Commission, in turn, often initiated enforcement actions against measures of recalcitrant Member
States stalling particular harmonisation legislation. giving ‘those Member States a stake (i.e., avoiding an
embarrassing enforcement proceeding) in ensuring passage of the legislation. Due op cit n 51, p 87.
7y See Weiler and Lockhart op cit n 54, p 76, who argue that ‘once it is found that a Member State measure
contravenes the market freedom interdictions such as Article 30, even if it is exculpated by a derogation
clause in the Treaty, the Community’s legislative competence is triggered and it may become susceptible to
harmonization’; Due op cit n 51, p 86; Berlin, ‘Interactions between the Lawmaker and the Judiciary
within the EC’, (1992) 2 LIEI 17. 30; Moore op cit n 16, p 201; Reich op cit n 16, pp 482-83; Gormley
(1989 LIE0 op cir n 50, p 16.
*” Weatherill up cit n 52, p 432 argues that a ‘diminished readiness to find a distortion of trade caused by
disparate national rules may place in doubt the competence of the Community to legislate in the field . . .’.
See also Chalmers op cii n 26. p 402.
Reich op cir n 16, p 478.
xz A. Hirschman, Esir. Voice und LoynltylResponses t o Decline in Firms, Orgunirutionr and Siutes (Harvard
University Press, 1970).
HZ Weiler (1991) op cit n 68, p 241 1.

their prerogative^.'^^ That is to say, the fewer opportunities Member States perceive for
escape from the reach of the Court’s reading of Article 30, the more they search for a
‘zone of autonomy’8s to combat further encroachment. Keck may be the Court’s
response to this Member State search, representing a more dedicated, vigorous
approach to the policing of the Community-Member State jurisdictional divide86, and
therefore an attempt to curtail a legitimacy crisis.
D Keck as Resolution
Taken at face value, Keck thus makes a judgment about precisely where the
Community-Member State jurisdictional divide falls, allocating those measures
classified as ‘selling arrangements’ to the Member States, and forcing both the Court
and the Community legislature from this particular sphere. However, even if this
jurisdictional ‘policing’ is required to resolve a legitimacy crisis, the question remains
whether Keck and ‘selling arrangements’ truly represent a successful step in the right
direction.
1. Is inaction legitimate?
Although this article operates on the premise that any legitimacy crisis to which the
Court was responding in Keck resulted from excessive interference with Member State
prerogatives, there is a strong current supporting the notion, at least in the era of the
Luxembourg Accord’s obsession with consensus, that illegitimacy would have resulted
more from judicial inaction than from an excess of action87.Burley and Weiler, in fact,
might well characterise vigorous policing of Member State prerogatives as a more
activist stance, in that it would require the Court to shift its focus from being the
‘engine of integration’ t o ‘supporting national governments as “transitional
minorities” in the emerging political Community’88.This difference may be little more
than semantic, however. Whatever the heuristic frame, the shared conclusion is that
addressing the legitimacy issue and placating Member States hold long-term benefits
for the process of integration.
2. Article IOOa
Despite the Court’s signal in Keck that ‘selling arrangements’ are not within
Community jurisdiction, could not the Commission still initiate harmonisation
legislation with Article lOOa EC as legal basis? Particularly in an area such as
x4 Reich op cit n 16, p 478.

x5 Burley (1992) op cit n 58, p 87.
86 See generally Burley ihid p 87: Weiler (1991) op cit n 68, pp 2451-52; Jacque and Weiler up cit n 68, pp
191, 202.
x7 Weiler, ‘The Community System: The Dual Character of Supranationalism’, (1981) 1 YEL 273. 302--3.
Weiler here argues that the ‘greater peril lies paradoxically in judicial inactivism, in the failure to act as a
federal adjudicator as regards the substantive expansion of the Community’s jurisdiction. . . . A
consistent failure of the Court to assert itself as a programmatic federal adjudicator might . . . leave
doubts as regards the legal and democratic legitimacy of the new Community policies as well as
contributing to an abstract loss of confidence in the European Court by its national counterparts . . .’ See
also Cappelletti, op cit n 66. pp 8-9; Amull, op cit n 60, p 4.
xx Slaughter Burley op cit n 55. p 394. See generally Burley (1992) op cit n 58. p 81: Weiler, ‘Eurocracy and
Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of
Fundamental Human Rights within the Legal Order of the European Communities’. (1986) 61
Wushington Luic Revim1 1 103.

advertising, where the Commission has in the past introduced harmonisation

l e g i ~ l a t i o nand
~ ~ , where the application of the Keck principle is arguably ambiguous90,
use of Article lOOa becomes especially relevant.
The first question in this regard is whether removal of a category of measure from
the scope of Article 30 concomitantly removes that category from the entire sphere of
Community legislative jurisdiction, or whether Article 1OOa casts a legal-basis ‘net’
wide enough to exceed the circumscribed Article 30 realm.
Article lOOa has been described as giving the Community ‘an almost free choice to
legi~late’~’. In fact, based on the Court’s broad reading of the Internal Market in the
Titanium Dioxide case92, justifying an interpretation of Article lOOa as ‘a general
authorization for the Community to legislate in nearly all areas which directly or
indirectly concern the internal market’93or any distortions thereto, it may well be that
even some Member State legislation not prohibited by Article 30 falls within the ambit o j
Article IOOa. That is to say, any Member State measure ‘exercis[ing]an effect on intra-
Community trade’ might trigger the Community’s competence to introduce
harmonisation legi~lation’~.
In fact, the Court in section 13 of Keck expressly acknowledges the distortive effect
on inter-state trade - albeit limited - of the ‘selling arrangements’ measure in question:
Such legislation may, admittedly, restrict the volume of sales, and hence the volume of sales of
products from other Member States, in so far as it deprives traders of a method of sales
promotion.
Such an acknowledgement, it is submitted, may leave an opening sufficient to

trigger the Commission’s prerogative to introduce harmonisation legislation under
Article 100a, regardless of the compatibility of the measure with Article 30.
Of course, the Court in Keck had no call to expressly address any issue beyond its
determination that certain measures constituting ‘selling arrangements’ do not violate
8y See Council Directive 84/450/EEC. 10 September 1984, relating to the harmonisation of Member State
laws regarding misleading advertising (OJ 1984 L 250/17).
yo See the Court’s treatment of advertising, post-Keck, in Clinique,supra n 25; Opinion of Advocate General
Leger in Mars GmbH, supra n 25, paras 29-31; Opinion of Advocate General Jacobs in Leckrc-Sipkc.
supra n 35, paras 37-38, 50, 54. See also Stuyck up cit n 25, pp 451-55; Todino and Luder op cit n 25, p
195. But see Opinion of Advocate General Van Gerven in Tankstation, supra n 22, para 25.
y 1 Barents. ‘The Internal Market Unlimited: Some Observations on the Legal Basis of Community
Legislation’, (1993) 30 CMLRKV85, 107. See also van Kersbergen and Verbeek. ‘The Politics of
Subsidiarity in the European Union’, (1994) 32 JCMS 215, 228.
y7 Case C-300/89 Commission v Council (‘Titanium Dio.uide’) [I9911 ECR 1-2867, paras 1 4 1 5 . In this case
the Court reasoned from the Article 8a goal of eliminating ‘disparities . . . liable to create or maintain
distorted conditions of competition’ that Article lOOa can be used generally to achieve this purpose.
Contrary to the opinion expressed by Chalmers op cit n 26, p 402, the Court has not narrowed the scope
of Article lOOa in decisions following Titanium Dioxide. Two subsequent cases challenging the selection
of Article lOOa as legal basis merely limit use of the Article to those situations where the primary goal of
the legislation is to harmonise in the interests of eliminating distorted conditions of competition.
Regardless, the Court maintains the focus of Article lOOa as eliminating distortions of competition. Case
C-70/88 Parliament v Council [I9911 ECR 1-4529, para 17; Case C-155/91 Commission and Parliament v
Council [1993] ECR 1-963, para 19-20. Furthermore, these latter two cases are arguably aimed more at
scrutinising attempts by the Commission or Council to circumvent either particular decision-making
processes or consultation of Parliament, rather than at revamping the substantive meaning of Article
100a.
y3 Barents op cit n 91, pp 87-88.
y41bidat 107.
0 Blackwell Publishers Ltd. 1996 24 1

Article 30. Thus, it is speculative to postulate that it meant to leave intact the
Community’s power to legislate under Article lOOa in the realm of ‘selling
arrangements’. However, it is equally speculative to postulate in the first instance that
the Court’s removal of a category of national measure from the ambit of Article 30
prevents Community legislative jurisdiction, as the inverse of the established principle
that subjection of a like measure to Article 30 triggers Community jurisdictiong5.
3. Subsidiarity
Even if the ambit of Article lOOa exceeds the jurisdictional scope of Article 30, any
harmonisation initiative would have to take into account the principle of
subsidiarityg6. Although the Court has not yet confronted the issue, Weatherill (pre-
Keck) queries whether ‘[a] diminished readiness to find a distortion of trade . . . may
place in doubt the competence of the Community to legislate in the field, under
existing Community law and a fortiori once the justiciability of the subsidiarity
principle . . . comes to be tested’97.
In other words, aside from the difficulties facing the Court in determining how
precisely to confront subsidiarity claimsg8,one need query whether a judgment of the
Court excluding an area from the scope of Article 30 reflects a statement that that
particular area is not within the Community’s ‘exclusive competence’ within the
meaning of Article 3b, paragraph 299, thus triggering a justiciable subsidiarity claim
should the Commission, regardless, opt to introduce harmonisation measures.
If, as Lenaerts posits, the drafters of Article 3b intended to delimit a constitutionul
rather than a legislative concept, ‘exclusivity’ implies a settled matter, i.e., one of a
textual (and most likely contextual) reading of the Treaty, as opposed to an evolving
exclusivity, i.e., one in which the Community through legislative action increases its
areas of exclusive competencelOO. If the Community cannot merely expand its
‘exclusive competence’ beyond the frozen limits of the Treaty, it would seem, inversely,
that subsidiarity could not be used to divest the Community of its power to act in
areas allocated it by the Treaty. This reading is in fact supported by the Community
institutions in their agreement regarding the procedures for implementing subsidiarity,
in which they take the view that ‘such procedures shall not call into question the
acquis communautaire, the provisions of the Treaties concerning the powers conferred
on the institutions or the institutional balance’lO’.This theory in turn suggests that if,
as argued above, the Community has the Treaty-allocated Article lOOa competence to
legislate in the ‘selling arrangements’ arena, subsidiarity should not be interpreted to
remove that power from Community competence.
95 See supra text notes 78-80.

96 Interinstitutional Declaration on Democracy, Transparency and Subsidiarity, Bull. EC 10-1993, 118, 119.
y7 Weatherill op cit n 52, p 432.
98 See Toth, ‘Is Subsidiarity Justiciable?, (1994) 19 ELR 268.

y9 Article 3b, paragraph 2:
In areas which do not fall within its exclusive competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed
action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale
or effects of the proposed action, be better achieved by the Community.
loo Lenaerts and van Ypersele, ‘Le principe de subsidiarite et son contexte: Etude de I’article 3b du Traite
CE,’ (1994) CDE Nos 1-2, 3. Lenaerts argues that without constitutional ‘exclusivity’ bounds,
subsidiarity would lose all relevance; the Community could obviate the necessity of a subsidiarity review
by merely legislating in the field.
Io1 Interinstitutional Declaration, supra n 96, p 119.

Even if the Community does not possess exclusive competence to legislate in the
‘selling arrangements’ arena, however, that is not to say that it may not act at all.
Rather, with the threshold question of exclusivity answered in the negative, the
Commission could still act if its actions conformed to the sensu lato principle of
subsidiarity; that is to say, if its actions extended only ‘in so far as’ necessaryto2.This
question of ‘how far’ the Community may legislate in an area in which it does not
enjoy exclusive competence is particularly puzzling relative to legislation regarding ‘the
establishment and functioning of the internal market’Io3. While the ‘how far’ portion
of the subsidiarity question is aimed at approximating the degree to which Community
action is needed to ‘satisfactorily achieve’ a particular policy objective, ‘[iln legislating
aspects of the common market . . . the Community’s central purpose is not so much the
adoption of a specijic policy as the creation of an orderly and consistent regulatory
e n ~ i r o n m e n t ”That
~ ~ . is to say, it is irrelevant to question the degree to which the
Member States are capable of solving a particular problem of regulatory minutia when
the general regulatory sphere, as a whole, reflects the focus of the legislative proposal.
For this type of inquiry, subsidiarity may in fact prove at best unenlightening, if not in
fact sophistic.
In any event, the purpose of this discussion is to illustrate that although the
Community must be sensitive to subsidiarity, neither that principle nor Keck will
necessarily divest the Commission of the right to act within the scope of Article 100a.
This, again, limits the ‘legitimacy impact’ of Keck for the Court.
Aside from the question of whether the Commission could act under Article lOOa in
the wake of Keck, there is also the question of whether it would do so. Even if
subsidiarity would not act as a justiciable barrier, the ‘spirit’ of subsidiarity might
cause the Commission to voluntarily limit its action. On numerous occasions, for
example, the Commission has decided to withdraw or alter legislative proposals’05,
citing the spirit if not the letter of subsidiarity as its motivation.
That said, however, the Commission’s stance on harmonisation, both pre- and post-
Keck, clearly leaves open avenues for action. In response to the Court’s Cassis de Dijon
decision, the Commission in 1980 issued a Communication outlining its harmonisation
missionto6.In this Communication, the Commission stated its intention to limit
harmonisation primarily to cases where ‘mandatory requirements’ were successfully
used by Member States to maintain derogations from Article 30, leaving alone the
subject area of those cases constituting unjustified violations of Article 30. Presumably,
the reasoning was that as long as Court-validated derogations based on ‘mandatory
requirements’ exist, the Commission should do its best through harmonisation to lessen
their negative impact on the integration of the Internal Market. Harmonisation was, in
effect, a second-best solution a necessary evil to mitigate the effects of valid
~
derogations. In contrast, outright, unjustified Article 30 violations would disappear as a

consequence of their invalidity, eliminating the need for harmonisation.
Io2 Article 3b, paragraph 2. See Lenaerts, ‘The Principle of Subsidiarity and the Environment in the
European Union’, (1994) 17 Fordham International Law Journal 846, 875.
Io3 Article 100a.
Io4 Bermann, ‘Subsidiarity and the European Community,’ (1993) 17 Hustings International and
Comparative Law Review 97, 109 (emphasis added).
Commission Report to the European Council on the Adaptation of Community Legislation to the
Subsidiarity Principle, COM (93) 545 final.
Io6 ‘Communication from the Commission concerning the consequences of the judgment given by the Court qf’
Justice on 20 February 1979 in Case 120178 (Cassis de Dijon), OJ 1980 C 25612.

Europeun Luw Journul Volume 2
Notably, the Commission failed to state its position relative to Member State
measures deemed not to violate Article 30, as is the case with measures constituting
‘selling arrangements’. Such measures (at least those which, although clearing Article
30, have some distortive effect on intra-Community trade) would seem to more readily
resemble justified rather than unjustified Article 30 violations, to the extent that they
will be allowed to remain in effect post-Keck. Under the Commission’s logic in its 1980
Communication, the distortive effects of these measures, permissibly maintained,
would be best mitigated through harmonisation.
The Commission arguably spoke to this position in a post-Keck Communication
clarifying its view on harmonisation in the Internal Market lo’. Therein, the
Commission reiterated its view that Cassis de Dijon’s basic principles remain effective,
noting that while, given Keck and its progeny, ‘the coming into force of the Maastricht
Treaty[,] and the derived law for completion of the internal market, the Community has
complete legislation’, the Commission retains the possibility of ‘establish[ing] uniform
Community legislation to replace the differing national provisions’ notified to the
Commission under a mandatory reporting scheme established by the Communica-
tionIos. Although harmonisation ‘does not constitute a generalized objective (given
the principle of subsidiarity)’, it will be sought ‘where Community legislation does in
fuct appear necessary and appropriate’i09.
Despite qualifications to the more aggressive stance toward harmonisation of non-
violations of Article 30 advocated by this author herein, the Commission’s post-Keck
Communication clearly reserves its prerogative in Keck-like scenarios to initiate
harmonisation legislation where it appears ‘necessary and appropriate’. Thus, the
Court in Keck may have failed to convince the Commission to steer clear of legislation
regarding ‘selling arrangements’. While it may be that there is ‘legitimacy value’ in
having the Court extract itself l o from the determination of whether an arguably
borderline national measure constitutes a derogation from Internal Market principles,
instead leaving it to the political branches to so determine’ l, it may also be that the
Court’s failings leave it entirely susceptible to continued critique of its legitimacy.
V Parallels
In areas apart from the free movement of goods, the Court has also shown itself
prepared to revitalise its efforts at protecting Member State prerogatives, narrowing
the ambit of Community law and potentially limiting the scope of Community
107 ‘EC/Internal Market: Commission Defines its Doctrine (in light of Court of Justice Judgements) and
Guidelines Concerning Mutual Recognition of National Provisions that Have Not Been Harmonized’.
Agence Europe, 6143, Friday, 7 January, 1994, p 7.
lox Ihid (emphasis in original).
I()’)Ihid (emphasis added).
l l o The Court still could be asked whether use of Article lOOa as legal basis was valid, with a positive
response inviting criticism of the Court’s ‘credibility as an effective guarantor against profligate
Community legislation’. Weiler (1993) op cir n 68, p 437. Moreover, even if a Member State elected to
exercise the Article lOOa(4) ‘safety valve’, granting an exception from the application of an Article lOOa
harmonisation measure on the grounds of .major needs’, the Court has shown itself to be wary of this
method of protecting Member State prerogatives. See Case C-41/93 France v Commission [I9941 ECR 1-
1841.
I I I See Lenaerts op cir n 51, p 15 where it is argued that in opting for majority voting, the Member States
preferred ‘political legislation, even at the risk of being pushed into the minority on a vote . . . to a kind
of ”creeping legislation” through the judicial process. to which they were completely external’.

jurisdiction. Although by no means exhaustive, the following discussion serves merely

to illustrate further the broader implications of a judicial ‘strategy’ aimed at
relegitimation.
A Competition Law I l 2
1. Anti-competitive Member State regulation
Particularly in its jurisprudence regarding the prohibition of anti-competitive Member
State regulation, the Court has shown a marked tendency to reserve a considerable
sphere for Member State control.
Although Articles 85 and 86 EC are aimed primarily at undertakings rather than
Member State legislation, the Court, supplementing these core Treaty articles with the
effet utile force of Articles 3(f)Il3 and 5Il4 EC, has imposed upon the Member States a
general obligation ‘not to introduce or maintain in force measures, even of a legislative
nature, which may render ineffective the [EC] competition rules applicable to
undertakings’II5. In a series of judgments based upon effet utile, the Court prohibited
Member State laws from ‘approving, encouraging or reinforcing restrictive private
arrangements contrary to Article 85’’ 16.
In a series of three judgments1I7delivered, incidentally, in the same week as Keck,
however, the Court displayed a new-found tolerance for such Member State action,
allowing anti-competitive regulation as long as ‘specific state actions’II8 deemed anti-
competitive (such as effecting the formalities of private agreement) were foregone and
‘the will of a Member State to exert its regulatory power [could] be identified’’l9.
This rather formalist approach functions largely to immunise state legislative action
from the reach of Article 85, essentially reversing direction from the Court’s earlier
effet utile approach. Although there is some question as to whether the Court has
112 This section will address the Court’s role in protecting the substantive prerogatives of Member States.
Therefore, the Commission’s introduction of the de minimis rule will not be discussed. See OJ 1986 C
23 112. Moreover, Court and Commission decisions to cede Community Competition law enforcement
authority to national courts will not be discussed, as this initiative still involves the substantive
application of Community law, as such not protecting Member State prerogatives to the same degree as
has Keck. See Editorial Comments, ‘Subsidiarity in EC Competition Law Enforcement’, (1995) 32
CMLRev I ; Alford, ‘Subsidiarity and Competition: Decentralized Enforcement of EU Competition
Laws’, (1994) 21 Cornell International Law Journal 211.
! I 3 Now Article 3(g) EC: ‘For the purposes set out in Article 2, the activities of the Community shall
include, as provided in this Treaty and in accordance with the timetable set out therein: . . . (g) a system
ensuring that competition in the internal market is not distorted.’
‘ I 4 Article 5 EC: ‘Member States shall take all appropriate measures, whether general or particular, to
ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the
institutions of the Community. They shall facilitate the achievement of the Community’s tasks.’
II5Case 267186 Van Eycke v ASPA [I9881 ECR 4769, para 16.
Chung, ‘The Relationship between State Regulation and EC Competition Law: Two Proposals for a
Coherent Approach’, (1995) 2 ECLRev 87, 89. See also Todino and Luder op cit n 25, pp 187-92. See
Case 123183 BNIC v Clair [1985] ECR 391; Joined Cases 209-21 3184 Ministere Public v Asjes [I9861 ECR
1425; Case 311185 Vereniging van Vlaamse Reisbureaus v Sociale Dienst [I9871 ECR 3801; Case 138186
BNIC v Auberf [I9871 ECR 4789.
I Case C-219 1 Woy Meng [ 19931 ECR 1-5751 ; Case C-245191 Ohra Schadeveriekeringen N V [ 19931 ECR I-
5851; Case C-185/91 Bundesanstalt fur den Giiterfernverkehr v Gebriider Reiff GmhH & Co. KG [I9931
ECR 1-5801.
Reich op cit n 16, p 472.
Chung op cit n 116, pp 89-90.
0Blackwe11 Publishers Ltd. 1996 245

shifted scrutiny of such approximate Member State action to its Article 90 EC

jurisprudenceI2O, the new approach to Articles 3(f) and 5 in conjunction with Article
85, as with the new approach to Article 30 in Keck, suggests an attempt by the Court
to carve out a sphere ‘where explicit national competition policy specific to a
particular industry may override the general competition policy of the Community’I2’.
Once again making a statement regarding precisely where the Community-Member
State jurisdictional divide falls, these pronouncements in the Competition law arena
echo Court attempts in Keck to relegitimise itself through overt recognition of ‘the
unnecessary conflicts which a dogmatic and insensitive application of the supremacy
of Community law might cause’122.
2. Scope of Article 85(1)

The Court also appears to have narrowed the scope of Article 85(1) in its Delimitis
again relegating a considerable sphere to Member State control. In
Delimitis, the Court broadly ruled that, to the extent that the market is not foreclosed
to competitors, vertical inter-brand restraints such as exclusive purchasing agreements
(and presumably tying) do not significantly restrict inter-state competition and thus
fall outside the scope of Article 85(1). Hawk has argued that this approach to inter-
brand restrictions also suggests that Article 85( 1) does not apply to less restrictive
intra-brand restraints such as exclusive distribution agreement^'^^, presumably as an
extension of the economic theory that where, as adjudged by the Court in Delimitis,
there is healthy industry (inter-brand) competition, vertical intra-brand arrangements
are actually pro-competitive, driving prices downward to the benefit of consumers.
Even without this extension, however, the Delimitis judgment carves a substantial
jurisdictional niche for Member State competition authorities in the application of
their own laws, and as such may represent another attempt by the Court at
reinvigorating its legitimacy by further delineating Community jurisdictional limits
and favouring Member State prerogatives.
Again, however, as in Keck, it is unclear whether the Court has successfully
banished the Commission from this Member State niche. In at least two subsequent
enforcement actions regarding intra-brand restraints, the Commission has maintained
what it apparently sees as its prerogative to put off inquiry into market foreclosure and
entry barriers to the Article 85(3) exemption phase of its investigations, overtly defying
the Court’s finding in Delimitis that the absence of such foreclosure militates against
application of Article 85(1) at the threshold12s.Although it is unclear whether the
Commission’s actions reflect genuine economic judgments or merely attempts to
‘maintain its [Article] 85(3) monopoly’’26, they do place into question whether the
Chung cites cases in which the Court adopted a reinvigorated approach to Article 90, but emphasises
that the more lenient Succhi doctrine (Case 155173 Italy 1’ Succlzi [I9741 ECR 409) has never been
disclaimed. Succhi requires that in order to establish unlawful state action under Article 90. ‘it is required
to prove not merely the creation or extension of the state monopoly but the specific exercise of the
monopolistic power in an arbitrary way and actual effects on trade’. Chung op cit n 116, p 91.
Chung up cir n 116, p 93.
Izz Ihid. Chung here specifically recognises Keck as a parallel move by the Court.
I?‘ Case C-234189 Deliinitis v Henning1.r Briiu A G [I9911 ECR 1-935.
Hawk, ‘The Treatment of Non-Territorial Vertical Restraints under EU and U.S. Competition Law’,
paper presented to European Commission Directorate General IV. 8 December 1994, pp 28-29, 3 6 3 9
(publication on file with author).
Schiiller Lehmsmitrel GmhH, OJ 1993 L 18311; Lungnesr-Iglo GnihH. OJ 1993 L 183119.
‘Ih Hawk up cit n 124, p 40.

Court’s attempt at jurisdictional line-drawing in the interest of restoring legitimacy has

in fact been successful.
That said, however, the Commission has stated its intent to honour Member State
prerogatives in its 23rd Report on Competition Policy:
[Rlestrictive agreements and abuses of dominant positions which, albeit appreciably affecting
intra-Community trade, produce most of their effects on the market of a single country should
be dealt with by the competition authorities of the Member State concerned . .
In this statement, the Commission offers some insight into whether it may in fact
heed recognition by the Court of a sovereign Member State sphere, thus boosting the
Court’s efforts at reclaiming its legitimacy.
B Services
As the Court’s jurisprudence on the free provision of services has developed largely in
tandem with its cases on the free movement of goodsI2*, one might rightfully expect a
parallel narrowing of Articles 52 and 59 EC to match the Court’s treatment of Article
30129.The Court has in fact recently taken a major leap forward, arguably accepting in
Alpine Investments and Semeraro the applicability of Keck’s ‘selling arrangements’
formulation to the services arena.
Alpine investment^'^^ involved the challenge by a Dutch financial services company
established in the Netherlands of a Dutch law prohibiting ‘cold calling’ to individuals
located both within and without Dutch borders. While the Court determined that the
Dutch law did in fact constitute a violation of Article 59 ultimately justified in the
public interest as a measure to ‘maintain the good reputation of the national financial
sector”31, the judgment’s interest from the perspective of this article involves its
discussion of Keck. While the Court did not, as did Advocate General Jacobs’”,
expressly accept the applicability of the ‘selling arrangements’ formulation to the
services arena, rather than deriding the reference to Keck as generally inapplicable in
the context of services, the Court instead narrowly denied the applicability of Keck
given the capability of the Dutch legislation at issue to ‘affect access to the market in
services in other Member States’ and thus to ‘hinder intra-Community trade in
s e r ~ i c e s ’ ’By
~ ~implication,
. Keck’s ‘selling arrangements’ formulation was only denied
127 Commission of the European Communities, XXIIIrd Report on Competition Policy 1993, section 190.
IZx Roth, ‘Report of Case C-76/90. Manfied Suger, [1991] ECR 1-4221’, (1993) 30 C M L R e v 145. 152. See
also Commission of the European Communities, European Community Competition Policy ( 1 9 9 5 ) .
section 94, where it is stated that in ‘cases where an appreciable economic effect is felt in mainly one
Member State, national authorities are closer to the market and may thus be better placed to handle the
case.’
While in Schindler the Court accepted as justifiable the host Member State’s prerogative to limit the
advertisement and sale of tickets for a lottery held in another Member State based on the new ‘order in
society’ justification, it did so only after first establishing that the national legislation violated Article 59,
divesting the Community of neither judicial nor legislative jurisdiction. Case C-275/92 Her Mujesfj,’s
Customs and Excise v Gerhurt Schindler and Jiirg Schindler [I9941 ECR 1-1039.
I3O Alpine Investments supru n 28.
1 3 ’ Ibid para 44.
1 3 2 Opinion of Advocate General Jacobs in Alpine Investmcwrs, .supru n 28 at para 60 of his opinion.
132AlpineInvestments, supru n 28, para 38. See also para 24, where the Court expressly recognizes that ‘the
prohibition at issue applies to the offer of cross-border services’.

applicability in Alpine Investments because, unlike the ‘resale at a loss’ legislation in

Keck, the Dutch law in Alpine Investments affected cross-border trade’34.
In its most recent pronouncement on the applicability of the ‘selling arrangements’
logic to its services jurisprudence, the Court in S e m e r ~ r o lin~ fact
~ accepted that
Member State regulations regarding Sunday trading d o not violate Article 52.
Although the case turned largely on the Court’s reiteration of its decision in Punta
Casa which cleared Sunday trading rules from scrutiny under Article 30 as national
rules concerning ‘selling arrangements’, the Court also addressed the national court’s
question regarding the acceptability of Sunday trading rules under Article 52,
borrowing heavily from Keck:
As far as Article 52 is concerned, suffice it to state that . . . the legislation in question is

applicable to all traders exercising their activity on national territory; that its purpose is not to
regulate the conditions concerning the establishment of the undertakings concerned; and that
any restrictive effects which it might have on freedom of establishment are too uncertain and
indirect for the obligation laid down to be regarded as being capable of hindering that
freedom’36.
Adopting in this passage all but the semantic label of ‘selling arrangements’, the.
Court in Semeruro has substantially moved toward more effective protection of
Member State prerogatives in the services realm and, as such, toward greater
legitimacy in the view of its Member State audiences.
VI Conclusion
The central paradox of the European Community (and indeed of other federal
polities) is that while in its earliest years integration advanced with comparative ease,
only in later years, despite substantial evolution, have small advancements often
appeared monumental and engendered considerable resentment. The Court, often
considered isolated from and indeed above acknowledgement of this political reality, is
also often the most visible protector of the Community’s core values and, as such, the
specific target of resentment. This dilemma leaves the Court particularly vulnerable,
but at the same time particularly well-positioned to craft decisions which protect core
Community values, stabilise integration, and rehabilitate the Court’s own credibility
and legitimacy.
Whatever the utility of the ‘selling arrangements’ formulation as a device -
developed alongside others in the Competition and services realms - to restore the
Court’s legitimacy in the eyes of its various constituencies, it definitively signals a
paradigmatic shift from a presumption of knee-jerk intolerance of Member State
‘j4 Hatzopoulos notes that in light of the ‘essential nature’ of the services realm, Keck’s distinction seems
inapplicable: ‘if goods can materially exist and freely circulate independently of the conditions of their
commercialization, a service, lacking any material support, only exists when it can be exercised and
commercialized’. Hatzopoulos, ‘Report of Case C-215192, Her Majesty’s Customs and E.wcise v Gerhart
and Jiirg Schindler, [I9941 ECR I-1039’, (1995) 32 CMLRev 841, 855, footnote 61. Keck, however, is as
much about the distinction between ‘selling arrangements’ and ‘product characteristics’ as it is about the
distinction between cross- and non-cross-border effect. That is to say, regardless of the fact that a
particular Member State measure restricts the ’essential nature’ of a service, i.e., the ability to freely
exercise and commercialise that service, if it in fact displays no cross-border effect, it should, in light of
the Court’s language in Alpine Investments, be subject to the ‘selling arrangements’ formulation.
‘ 3 5 Semeraro Casa Uno, supra n 22.
1 3 h Ibid para 32.

infractions to a more critical search for the precise parameters of the Common Market
ideal. If the Court stands by its judgments and enforces the primacy of Member State
prerogatives within their own spheres, we will witness the emergence of a radically new
approach to integration; namely, one which accepts the dual existence of severable
Community and Member State competences in substantive areas previously
considered purely Communitarian given the drive toward integration.
Severing those spheres and allowing their ‘peaceful coexistence’, however, will
ironically lead to a more stable, healthier evolution of the Common Market. In this
light, mere recognition by the Court that it needs more effectively to police the
Community-Member State divide is encouraging, and quite possibly more important
than whether the decisions reflecting that recognition are absolutely unassailable. For
these reasons, recent developments in the Court’s jurisprudence, initiated with Keck
and mirrored in the Competition and services realms, provide welcome relief and bode
well for the Community’s continued, successful evolution.
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Wils, ‘The Search for the Rule in Article 30 EEC: Much Ado about Nothing?, (1993) 18 ELR 475

European Law Journal Volume 2 Issue 3 1996 (Doi 10.1111/j.1468-0386.1996.Tb00027.x) Todd J. Friedbacher - Motive Unmasked - The European Court of Justice, The Free Movement of Goods, and The Search

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European Law Journal Volume 2 Issue 3 1996 (Doi 10.1111/j.1468-0386.1996.Tb00027.x) Todd J. Friedbacher - Motive Unmasked - The European Court of Justice, The Free Movement of Goods, and The Search

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European Law Journal, Vol. 2, No. 3, November 1996, pp.

Motive Unmasked: The European Court

Abstract: In exempting from scrutiny under Article 30 EC certain measures

I1 The Court and Article 30

’ Case 8/74 Procureur du Roi v Dussonville [I9741 ECR 837, para 5.

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‘mandatory req~irements’~ of national law relating, among other things, to consumer

B Keck: Basic Facts and Holding

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rule banning television advertising by the distribution sector35; a Member State

I11 Keck - A New Direction

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B Textual and Contextual Change

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Court refuses, in a technique considered by Bengoetxea as common to its

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1. Mass public opinion

2. Member State governments and courts

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Community jurisdiction/competences/powers and the collapse of constitutional guarantees

l 2 Arnull op cit n 60, p 13; Weiler (1993) op cit n 68, p 444.

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clarifies earlier botched attempts76 by the Court to interpose the requirement of an

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x4 Reich op cit n 16, p 478.

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advertising, where the Commission has in the past introduced harmonisation

Such an acknowledgement, it is submitted, may leave an opening sufficient to

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95 See supra text notes 78-80.

98 See Toth, ‘Is Subsidiarity Justiciable?, (1994) 19 ELR 268.

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derogations. In contrast, outright, unjustified Article 30 violations would disappear as a

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jurisdiction. Although by no means exhaustive, the following discussion serves merely

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shifted scrutiny of such approximate Member State action to its Article 90 EC

2. Scope of Article 85(1)

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Court’s attempt at jurisdictional line-drawing in the interest of restoring legitimacy has

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applicability in Alpine Investments because, unlike the ‘resale at a loss’ legislation in

As far as Article 52 is concerned, suffice it to state that . . . the legislation in question is

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circulation des marchandises’, (1994) C D E Nos. 3 4 , 4 3 5

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