The Keck Controversy, General Jacob's
The Keck judgment (hereinafter Keck) was an important milestone because it "clarif[ied]" (whether "correctly" or "incorrectly") the case law on Article 30 of the then-European Economic Community Treaty and therefore directed the progression of the European common market project. Unfortunately, it generated a lot of controversy. Amongst the criticism levelled at it was the Opinion of Advocate General Jacobs, where the Advocate General crystallises his objections in paragraphs 38-39. These objections are largely valid, especially given the Treaty's wider objective to create a common market. However, they do not address comprehensively all the issues broached in Keck.
Advocate General Jacob's first objection is that Keck inappropriately made "rigid distinctions between different categories of rules [and applied] different tests depending on the category to which particular rules belong". This statement is a largely accurate summary of paragraphs 15 and 16 of Keck, which apply different tests to the rules pertaining to the product itself and the rules pertaining to "selling arrangements". According to the first test, found in paragraph 15, rules pertaining to the product constitute measures of equivalent effect prohibited by Article 30 if they result in "obstacles to free movement of goods". According to the second test in paragraph 16, however, rules pertaining to "selling arrangements" do not constitute measures of equivalent effect "so long as [they] apply to all relevant traders within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States". As such, Keck does "[apply] different tests depending on the category to which particular rules belong", and therefore the Advocate General is correct in this respect.
[...] the most tenuous link with intra-Community trade”10. Viewed in this light, it also appears less likely that the test was proposed because, as some have attempted to rationalise, “measures dealing with selling methods (having no bearing on the product itself) concern the circumstances under which goods are sold, although the actual sale of the product is not hindered or prevented”11 (even though this is admittedly a reasonable explanation). So, it is really paragraph 14 that is problematic in Keck, and all the more so because the above-cited “tendency of traders” is, in the larger scheme of the Treaty, irrelevant. [...]
[...] It must be clarified, though, that the “test of discrimination” is only “inappropriate” (or more precisely, irrelevant) because it relates to selling arrangements. A test of discrimination per se is not and cannot be considered “inappropriate” since non-discrimination is the whole point of Article 30. This is the same issue that one critic has alluded to when he suggested that “the Court should have defined its Keck test with regard to the effects of measures, rather than their nature”8 (emphasis in original). [...]
[...] Insofar as this is what Advocate General Jacobs means, he is correct. In any event, though, the analysis in the Opinion is incomplete as the Advocate General does not address all the critical issues that come up in the line of reasoning in Keck. If we backtrack along this line within the text of the decision, it becomes evident that the Court in Keck formulated the paragraph 16 test because it wanted to respond effectively to “the increasing tendency of traders to invoke Article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom”9 by setting a broad agenda for future cases that would be analogous in some way to Keck itself. [...]
[...] Article 30 provides: “Quantitative restrictions on importation and all measures with equivalent effect shall, without prejudice to the following provisions, hereby be prohibited between Member States.” It is clear from its wording that the Article is directed at measures that are similar in effect to quantitative restrictions on imports. Accordingly, the test formulated in paragraph 16 of Keck will be correct only if it makes clear that See Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649. Opinion of Advocate General Jacobs, supra note at paragraph 39. [...]
[...] Viewed from this angle, there is a reasonable basis for distinguishing between the two categories of rules, and the only way the distinction may be criticised as “rigid” is due to the tests administered to each category. However, from the syntax expressed in the Opinion of the Advocate General himself, it is the application of the test that “depends on” and thus follows the category. So, it cannot be the case that the distinction is “rigid” because of the application of the tests, because the logic would then be circular. [...]
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