Keck and Mithouard (1993): The Boundary Between Selling Arrangements and the Free Movement of Goods
“Not every national rule restricts the free movement of goods.” The Keck judgment clearly drew this simple but important line for the first time.
Hello! Today we’re looking at Keck and Mithouard (1993). To be honest, when I first studied this case I wondered, “Why did the Court suddenly want to distinguish rules about products from rules about selling?” I soon realized why: after Cassis de Dijon, the principle of free movement of goods was being read so broadly that almost every domestic rule was being challenged, creating chaos. Keck cleaned things up and reset the balance point in EU internal market law.
Contents
Background and Facts
French traders Keck and Mithouard were prosecuted for engaging in resale at a loss. French law prohibited selling goods below cost, and the two traders argued that this rule infringed the Treaty’s free movement of goods. The case reached the Court of Justice of the EU (CJEU), raising the question whether the broad post–Cassis de Dijon approach to free movement needed recalibration.
Core Issue: Distinguishing Selling Arrangements from Product Requirements
The issue was whether we should distinguish between rules about selling (selling arrangements) and rules about the characteristics of products (product requirements). After Cassis, it felt as if every national rule amounted to a barrier to trade, undermining legal certainty.
| Type of Regulation | Examples | Breach of EU Law? |
|---|---|---|
| Product requirements | Composition, packaging, labelling rules | Likely to restrict the free movement of goods |
| Selling arrangements | Opening-hour limits, advertising bans, bans on resale at a loss | Generally not a breach if non-discriminatory |
The Court’s Judgment and Reasoning
The CJEU drew a new line between selling arrangements and product requirements. A selling arrangement that applies equally to all market participants, in law and in fact, and is independent of the goods’ origin, is not a restriction on the free movement of goods. Key reasoning points:
- Product requirements remain assessed under Cassis as potential restrictions on free movement.
- Non-discriminatory selling arrangements that apply uniformly do not hinder free movement.
- Distinguishing regulatory types promotes legal certainty and predictability.
Impact on the EU Legal Order
The Keck ruling was a key moment for re-scoping the reach of the free movement of goods after Cassis de Dijon. It halted the trend of treating all rules as Treaty breaches, and by clearly separating selling arrangements from product requirements it restored legal certainty and some regulatory discretion for Member States. As a result, non-discriminatory selling arrangements could be adopted without automatically breaching EU law.
Criticism and Academic Debate
Keck also sparked controversy. Critics argued that the distinction between selling arrangements and product requirements lacked clarity and created confusion in practice. Scholars remain divided on whether Keck was a retrenchment of free movement or a realistic adjustment.
| Perspective | Main Argument |
|---|---|
| Critical | The line between selling arrangements and product requirements is fuzzy, undermining predictability. |
| Supportive | It restored balance by recognizing legitimate Member State regulatory powers. |
Contemporary Significance and Takeaways
Keck still features prominently in study and exams. In practice, the line “non-discriminatory selling arrangements are not Treaty breaches” is often cited. Because of its ambiguity, however, later case law refined the approach, pairing it with a more fine-grained proportionality analysis. Key takeaways:
- A realistic adjustment of the broadened post-Cassis free movement doctrine.
- Recognition of Member States’ space to regulate selling methods.
- Ongoing subject of debate and doctrinal refinement because of its fuzziness.
Frequently Asked Questions (FAQ)
French traders Keck and Mithouard were prosecuted for selling below cost, and the issue was whether that selling rule breached the Treaty’s free movement of goods.
Whether to distinguish product requirements from selling arrangements, and whether selling rules amount to restrictions on free movement.
If a selling arrangement is non-discriminatory and applies equally to all traders, it is not a restriction on the free movement of goods.
It curtailed the overly expansive post-Cassis reading of free movement and restored Member States’ regulatory discretion.
Some praise the increased legal certainty; others criticize the blurry distinction for creating new confusion.
Yes. It remains the starting point for analysing selling arrangements and free movement, though later cases have refined it.
In Closing
Keck and Mithouard (1993) put the brakes on the post-Cassis “expansion” and reshaped the internal market landscape. When you study, start by asking about the nature of the rule. Does it affect the product’s characteristics (composition, labelling, etc.)? Or does it regulate how the product is sold (opening hours, pricing rules, etc.)? Then check discrimination and general applicability—with those steps, most problems line up. If you’re wrestling with borderline scenarios—like advertising or online platform rules—drop them in the comments. We’ll map them against the latest case law together. 🙂
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