4. “The question then is what test should be applied in order to determine whether a
measure falls within the scope of Article [34 TFEU, ex 28 EC, ex ex 30 EEC]. There is one
guiding principle which seems to provide an appropriate test: that principle is that all
undertakings which engage in a legitimate economic activity in a Member State should
have unfettered access to the whole of the EU market, unless there is a valid reason for
denying them full access to a part of that market. In spite of occasional inconsistencies
in the reasoning of certain judgments, that seems to be the underlying principle which
has inspired the Court’s approach from Dassonville through Cassis de Dijon to Keck.
Virtually all of the cases are, in their result, consistent with the principle, even though
some of them appear to be based on different reasoning (ADVOCATE GENERAL
JACOBS, Société d’Importation Edouard Leclerc-Siplec v TFI Publicité SA and M6
Publicité SA (1995)).
To what extent is this statement of the law correct? Does the law need reform?
Advocate General Jacobs’ statement purports to demonstrate that the dominant principle
underpinning art.34 TFEU is market access. That is, he believes that the test for whether
national measures are contrary to art.34 is whether they hinder access to a given market within
the Union. Jacobs’ statement illuminates a desire on the part of the CJEU to show that its
reasoning on quantitative restrictions and measures having equivalent effect is consistent.
However, Jacobs’ formulation is inaccurate, and attempts to smooth over inconsistencies that
are more than ‘occasional’ but go to the root of art.34. This essay will demonstrate not only that
the CJEU’s reasoning is inconsistent, particularly with regards to Keck, but also that EU law
needs reform to provide orderly and sensible guidelines for the application of art.34.
Dassonville provided a starting point by defining ‘measures having equivalent effect to
quantitative restrictions’ (MEQRs) for the purposes of art.34. The Dassonville formula provides
that MEQRs are all measures that ‘are capable of hindering, directly or indirectly, actually or
potentially, intra-Community trade’. This formulation is significant because it demonstrates that
the focus is on the measure’s (potential) effect on trade between member states, rather than on
its discriminatory (or not) nature. This demonstrates the ‘market access approach’ to which
Jacobs refers. This is consistent with the principle in Cassis, because that judgment also
considers that measures that are indistinctly applicable measures may be contrary to art.34 if
they inhibit market access for imported products by imposing trade rules that differ from those of
the product’s country of origin (obstacles). This principle, termed by Craig and De Burca ‘mutual
recognition’, recognizes that market access is not about treating imported and domestic goods
differently, but about the effect of a measure on an importer’s ability to sell a given product. It is
worth asking whether ‘mutual recognition’ is a useful term - it implies some kind of shared
standards, when really the principle focuses on how different standards across member states
can be prohibitive to market access. (it’s not about common standards)
However, the court’s reasoning becomes inconsistent in Keck. Keck is more than an ‘occasional
inconsistency’; it is an entirely new approach to the guidelines for art.34. Keck does not ask
whether the measure hinders market access, but instead asks whether the measure applies to
the good itself, or to the selling arrangements of the good. Restrictions on selling arrangements
measure falls within the scope of Article [34 TFEU, ex 28 EC, ex ex 30 EEC]. There is one
guiding principle which seems to provide an appropriate test: that principle is that all
undertakings which engage in a legitimate economic activity in a Member State should
have unfettered access to the whole of the EU market, unless there is a valid reason for
denying them full access to a part of that market. In spite of occasional inconsistencies
in the reasoning of certain judgments, that seems to be the underlying principle which
has inspired the Court’s approach from Dassonville through Cassis de Dijon to Keck.
Virtually all of the cases are, in their result, consistent with the principle, even though
some of them appear to be based on different reasoning (ADVOCATE GENERAL
JACOBS, Société d’Importation Edouard Leclerc-Siplec v TFI Publicité SA and M6
Publicité SA (1995)).
To what extent is this statement of the law correct? Does the law need reform?
Advocate General Jacobs’ statement purports to demonstrate that the dominant principle
underpinning art.34 TFEU is market access. That is, he believes that the test for whether
national measures are contrary to art.34 is whether they hinder access to a given market within
the Union. Jacobs’ statement illuminates a desire on the part of the CJEU to show that its
reasoning on quantitative restrictions and measures having equivalent effect is consistent.
However, Jacobs’ formulation is inaccurate, and attempts to smooth over inconsistencies that
are more than ‘occasional’ but go to the root of art.34. This essay will demonstrate not only that
the CJEU’s reasoning is inconsistent, particularly with regards to Keck, but also that EU law
needs reform to provide orderly and sensible guidelines for the application of art.34.
Dassonville provided a starting point by defining ‘measures having equivalent effect to
quantitative restrictions’ (MEQRs) for the purposes of art.34. The Dassonville formula provides
that MEQRs are all measures that ‘are capable of hindering, directly or indirectly, actually or
potentially, intra-Community trade’. This formulation is significant because it demonstrates that
the focus is on the measure’s (potential) effect on trade between member states, rather than on
its discriminatory (or not) nature. This demonstrates the ‘market access approach’ to which
Jacobs refers. This is consistent with the principle in Cassis, because that judgment also
considers that measures that are indistinctly applicable measures may be contrary to art.34 if
they inhibit market access for imported products by imposing trade rules that differ from those of
the product’s country of origin (obstacles). This principle, termed by Craig and De Burca ‘mutual
recognition’, recognizes that market access is not about treating imported and domestic goods
differently, but about the effect of a measure on an importer’s ability to sell a given product. It is
worth asking whether ‘mutual recognition’ is a useful term - it implies some kind of shared
standards, when really the principle focuses on how different standards across member states
can be prohibitive to market access. (it’s not about common standards)
However, the court’s reasoning becomes inconsistent in Keck. Keck is more than an ‘occasional
inconsistency’; it is an entirely new approach to the guidelines for art.34. Keck does not ask
whether the measure hinders market access, but instead asks whether the measure applies to
the good itself, or to the selling arrangements of the good. Restrictions on selling arrangements
