The this area is based. Further to this, when

The aforementioned arguments highlight that case
law on the free movement of goods is incoherent. Initially, Dassonville brought clarity to
this area of law but as subsequent decisions followed its authority was
weakened. Cassis began to
expand the scope of Article 34 that had been opened up by Dassonville. It addressed the significant problem of
disparities between laws of Member States. From this it appears that Cassis attempted to provide a
coherent response to Article 34, but again later case law unraveled this. Commission v Italy1 imposed
itself as a test after Cassis
and Keck where the Court
applied a hindrance to market test as opposed to a substantive hindrance test.
This went against a significant amount of case law and it is argued that it may
just be considered anomalous2.
Although the Court does tend to stray from Cassis
and Keck, in this particular
case there was insufficient reasoning on the solution that was reached. This
may perhaps be a reflection of an inability to formulate a satisfactory
framework. Subsequently, it can be suggested that following Dassonville the Court realised
that the intricacies of the common market were far beyond the formula they had
provided. Therefore, it would make sense to abandon the somewhat vague Dassonville analysis and redefine
the reasoning upon which case law in this area is based.

 

Further to this, when looking at Dassonville it is clear that the Alfa Vita requirement comes under
the definition of an MEQR but the Court adapted this further by looking at the
absolute impact of a measure. In Mickelsson
and Roos3
for instance, the Court held that Swedish rules on the use of jet-skis hindered
the free movement of goods but were justifiable on Article 36 grounds. Yet
again, the Court did not develop its reasoning on choosing to rule such a way.
It is not known whether it was decided this way because it was an MEQR or for
environmental protectionist reasons4. AG
Kokott’s clarification of the situation looked at the distinction between
restrictions that deprive meaningful use and those which simply limit the
circumstance in which products may be used5.
Although Alfa Vita may be
reconciled using the latter perspective, which would make it a selling
arrangement, it would then result in inconsistencies with other case law. Perhaps
this is why the Court declined to follow this approach.

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Alfa Vita widened the scope of Article 34 even
further. This is because the Court stated that imposing unnecessarily high costs
in regards to the requirements would decrease sales, including imports. From this
it can be inferred that an unequal effect is not necessary to find a breach
under Article 34. The widening of this provision also raises constitutional
issues which may be solved by the introduction of a de minimis test. However,
this was ruled out in Van de Haar.
Having said that, looking at Commune
di Bassano6
and Peralta7, a
more informal test, allowing for flexibility is alluded to. However, Peralta was also inconsistent
with Keck because it adopted a
different approach; where the aim of national legislation is not to control
trade and its restrictive effects are uncertain, it should be regarded as
impeding trade. On the contrary, in Keck
the Court suggested it was not the ‘nature’ of selling arrangements to prevent
market access8.
Therefore, it can be argued the best approach for the Court would be to clarify
Keck as opposed to abandoning
it. A test which is based on prevention would be better as these measures tend
to be discriminatory in their nature9.

 

Similarly, AG Bot in Commission v Italy suggested the Keck proviso should not be extended to encompass rules
relating to product use. It would allow Member States to pass legislation on “areas
which the legislature wished to communitarise’10. Moreover,
it would undermine the scope of a provision which has been expanded far enough.
The alternative that was suggested was a market access test applicable for all
measures. This is somewhat in coherence with AG Maduro who proposed the
alteration of the Keck
formula. He stressed the importance of freedoms of movement and the ability to
align them with broader objectives of the internal market and European
citizenship. The first part of his criteria prohibits discrimination based on
nationality, the second focuses on establishing that supplementary costs on
goods in the Community are a barrier to trade and finally that any measure
which prohibits market access to a greater extent be considered under Article
34. There is clear support11
for such a test because it emphasises the importance of considering broader
contexts. It may not be acceptable for this to replace Keck but it does show the incoherency created by it in this
area of law.

 

Keck aimed to ‘tame the
Article 34 tiger’12
and provide consistency but it has failed to do so. This is primarily because
of the market access definition it proposes and the arbitrary distinction it draws
between product rules and selling arrangements ,which focuses on form and not
effect. As a result, subsequent case law, including Alfa Vita has become riddled with inconsistences. The effects
of the Alfa Vita judgment will
consequently be marginal because Member States have no consistent pattern of
case law to look to when drafting legislation or bringing claims. A provision
may be a selling arrangement under Morellato
but disputed under Alfa Vita. At present, the case law on free movement of
goods is somewhat legally uncertain and there are many practical difficulties
because the judgments do not complement each other.

1 Case C?110/05 Commission of European Communities v Italian
Republic ECLI:EU:C:2009:66

2 Damian Chalmers, ‘Free
Movement Of Goods Within The European Community: An Unhealthy Addiction To
Scotch Whisky?’ (1993) 42 The International and Comparative Law Quarterly (page
285)

3 Case C-142/05 Åklagaren v
Percy Mickelsson and Joakim Roos ECLI:EU:C:2009:336

4 Ioana Luca, The Impact of
Keck Doctrine on Free Movement of Goods, 2011 R.R.D.E. 115 (pages 122 –
124)  

5 Case C-142/05 Opinion of
Advocate General Kokott ECLI:EU:C:2006:782

6 Joined cases C-140/94, C-141/94 and C-142/94 DIP SpA v Comune di Bassano del Grappa, LIDL
Italia Srl v Comune di Chioggia and Lingral Srl v Comune di Chiogga ECLI:EU:C:1995:330

7 Case C-379/92 Peralta ECLI:EU:C:1994:296

8 Josephine Shaw, Social Law
And Policy In An Evolving European Union (Hart 2000) (pages 20 – 23)

9 Joseph Weiler in Josephine Shaw, Social Law And Policy In An Evolving European Union (Hart 2000)
(pages 20 – 23)

10 Case C-110/05 Opinion of
Advocate General Bot ECLI:EU:C:2006:646 (paragraph 91)

11 Case C-322/01 Deutscher
Apothekerverband ECLI:EU:C:2003:664 (paragraph 73 and 74)

12 Dashwood A, “The Cassis
de Dijon Line of Authority” in S. Bates, with Finnie and J. Wildberg, In
Memoriam DB Mitchell (Sweet & Maxwell, 1983) p. 158.

x

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