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 Core Issue: Distinguishing Selling Arrangements from Product Requirements The Court’s Judgment and Reasoning Impact on the EU Legal Order Criticism and Academic Debate Contemporary Significance and Takeaways

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)

Q What was the Keck case about?

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.

Q What was the core issue?

Whether to distinguish product requirements from selling arrangements, and whether selling rules amount to restrictions on free movement.

Q How did the CJEU rule?

If a selling arrangement is non-discriminatory and applies equally to all traders, it is not a restriction on the free movement of goods.

Q Why is this important?

It curtailed the overly expansive post-Cassis reading of free movement and restored Member States’ regulatory discretion.

Q How do scholars view it?

Some praise the increased legal certainty; others criticize the blurry distinction for creating new confusion.

Q Does it still matter today?

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. 🙂

Factortame (No. 2, 1991): Supremacy of EU Law and the Limits of National Law

“When national law conflicts with EU law, national courts must set aside their own legislation and give priority to EU law.” The Factortame litigation illustrated this principle dramatically.

Hello again, fellow EU law learners. The case we cover today—Factortame (No. 2, 1991)—was truly shocking when I first read it. The courts openly declared that the famed “sovereignty of Parliament” in the UK could be curtailed by EU law. Beyond a fisheries dispute, this landmark case made clear that domestic courts may prioritize EU law over their own Parliament’s legislation. Let’s unpack the context step by step.

Contents

Background and Facts Core Issue: Parliamentary Sovereignty vs. Supremacy of EU Law The Court’s Judgment and Reasoning Impact on the EU Legal Order Criticism and Academic Debate Contemporary Significance and Takeaways

Background and Facts

The starting point was the UK’s Merchant Shipping Act 1988. By tightening vessel registration requirements, the Act effectively restricted Spanish fishermen from operating in UK waters. Spanish fishing company Factortame Ltd claimed their rights were unlawfully infringed and brought proceedings, which the UK courts referred to the Court of Justice of the European Union (CJEU). The central question was what national courts must do when domestic legislation conflicts with EU law.

Core Issue: Parliamentary Sovereignty vs. Supremacy of EU Law

At stake was how far the UK Parliament’s legislative power is constrained by the supremacy of EU law. The UK government argued that Acts of Parliament carry ultimate authority domestically, while the claimants insisted that, under EU supremacy, the UK statute had to be disapplied.

Side	Argument	Core Reasoning
UK Government	Maintain parliamentary sovereignty	Acts of Parliament possess the highest domestic authority.
Factortame (claimants)	Apply EU supremacy	Where national law conflicts with EU law, the court must disapply the national statute.

The Court’s Judgment and Reasoning

The CJEU stated unequivocally: the supremacy of EU law is not a mere abstraction; it must be given effect. Therefore, the UK courts were required to refrain from applying the conflicting provisions of the Merchant Shipping Act 1988. Key reasoning points:

• EU law prevails over domestic legislation; courts must not apply conflicting national rules.
• Domestic procedural doctrines or appeals to parliamentary sovereignty cannot undermine the effectiveness of EU law.
• National courts are under a duty to take all measures necessary to secure the direct effect of EU law.

Impact on the EU Legal Order

Factortame (No. 2) offered the most dramatic demonstration of EU law’s supremacy, in direct confrontation with the UK’s doctrine of parliamentary sovereignty. The case went beyond mere respect for EU law: it confirmed that domestic courts have both the authority and the duty to disapply national legislation enacted by their own Parliament when it conflicts with EU law. This was a decisive moment in securing the autonomy and effectiveness of the EU legal order.

Criticism and Academic Debate

The judgment sparked intense debate in academia and politics. Some praised it for strengthening the rule of law and coherence of EU law, while others condemned it as an overreach undermining national sovereignty.

Perspective	Main Argument
Critical	Seriously erodes parliamentary sovereignty and weakens democratic legitimacy.
Supportive	A necessary decision to ensure the consistency and effectiveness of the EU legal order.

Contemporary Significance and Takeaways

Today, Factortame remains indispensable when discussing the clash between domestic constitutional principles and the supremacy of EU law. It drew renewed attention during the Brexit process and often features in explanations of why the UK ultimately chose to leave the EU. Key takeaways:

• A case confirming that national courts may disapply Acts of their own Parliament.
• A practical strengthening of the principle of EU law supremacy.
• A key backdrop for sovereignty debates that surfaced during Brexit.

Frequently Asked Questions (FAQ)

Q What was Factortame (No. 2) about?

When the UK’s Merchant Shipping Act 1988 conflicted with EU law, the national courts prioritized EU law and declined to apply the domestic statute.

Q What was the core issue?

The clash between parliamentary sovereignty and the supremacy of EU law, and the role of national courts.

Q How did the CJEU rule?

National courts must refrain from applying conflicting domestic statutes and are obliged to secure the direct effect of EU law.

Q Why is it considered a landmark case?

It confirmed at a practical level that domestic courts can disapply Acts of Parliament that conflict with EU law.

Q Does it still matter today?

Yes. Factortame remains central to discussions about EU law supremacy and the scope of national judicial powers.

In Closing

Factortame (No. 2, 1991) turned textbook principles into courtroom action. The message that national courts may themselves disapply Acts of Parliament brought the supremacy of EU law down from theory to reality. I always remember this line: “Legal supremacy proves itself in the effectiveness of remedies, not in procedure.” When tackling problems, walk the checklist—confirm the conflict → disapply immediately → apply EU law directly. If you’re unsure about jurisdictional nuances or borderline facts, drop them in the comments and we’ll trace the operational boundaries together. 🙂

Cassis de Dijon (1979): Mutual Recognition and the Limits of Non-Discrimination

“A product lawfully marketed in one Member State should be freely sold in another.” This revolutionary statement first emerged in the Cassis de Dijon judgment.

Hello, readers interested in EU law. Today we unpack Cassis de Dijon (1979). When I first encountered this case, I wondered, “Why did the alcohol content of a liqueur become such a big deal in EU law?” But this wasn’t just about importing booze—it was a landmark ruling that simultaneously set the rules for the free movement of goods and the justification of Member State regulations. Let’s follow the outline and break it down.

Contents

Background and Facts Core Issue: Free Movement vs Domestic Regulation The Court’s Decision and Reasoning Impact on the EU Legal Order Criticism and Academic Debate Contemporary Significance and Takeaways

Background and Facts

A German importer sought to sell the French fruit liqueur Cassis de Dijon on the German market. At the time, German law required a minimum alcohol content of 25% for fruit liqueurs, whereas Cassis de Dijon was around 15–20%. German authorities therefore banned its import and sale. The dispute escalated into a clash between the free movement of goods and Member States’ regulatory powers.

Core Issue: Free Movement vs Domestic Regulation

At its core, the case asked whether national rules may restrict the free movement of goods. Germany sought to justify its rule on consumer protection and public health grounds, while the importer argued that the restriction was discriminatory and unnecessary.

Side	Argument	Core Reasoning
German Government	Justification of national regulation	Aimed at preventing consumer deception and protecting public health
Importer	Guarantee of free movement	The German rule is an unnecessary barrier and infringes the free movement of goods

The Court’s Decision and Reasoning

The Court of Justice (CJEU) held that Germany’s rule violated the EEC Treaty’s free movement of goods. At the same time, it articulated two seminal principles:

• Principle of Mutual Recognition: A product lawfully produced and marketed in one Member State should, in principle, be admitted to sale in other Member States.
• Mandatory Requirements: National measures may be justified only for legitimate reasons—such as consumer protection, public health, or effective fiscal supervision—and must be proportionate.

Impact on the EU Legal Order

The Cassis de Dijon judgment re-defined the foundations of free movement of goods. Beyond simple non-discrimination, it set out the conditions under which national rules may be justified, completing the legal architecture of the internal market. The ruling entrenched mutual recognition as a driver of EU economic integration, while the concept of mandatory requirements became a touchstone for assessing the legitimacy of domestic regulation.

Criticism and Academic Debate

The case drew both praise and criticism. While mutual recognition strengthened economic freedom, some argued it narrowed Member States’ room to regulate in the public interest.

Perspective	Main Argument
Critical	Mutual recognition weakens regulatory autonomy and may hinder consumer protection or other public policies.
Supportive	It strengthens the internal market’s freedoms while limiting national rules to a reasonable, proportionate scope.

Contemporary Significance and Takeaways

Today, Cassis de Dijon still sits at the center of internal market law. It guarantees the free movement of goods while allowing justified regulation on proper grounds. Key takeaways:

• Mutual recognition accelerated EU economic integration.
• “Mandatory requirements” set a benchmark for legitimate, proportionate regulation.
• The free movement of goods became a flagship norm of EU law.

Frequently Asked Questions (FAQ)

Q What was the Cassis de Dijon case about?

Germany blocked imports of the French fruit liqueur Cassis de Dijon because of its lower alcohol content, triggering a clash between free movement of goods and national regulatory powers.

Q What was the core issue?

Whether a Member State’s domestic rules can restrict free movement of goods and, if so, under what justification criteria.

Q How did the CJEU rule?

It found Germany’s rule contrary to the Treaty and, for the first time, set out the principles of mutual recognition and mandatory requirements.

Q What is the principle of mutual recognition?

A product lawfully produced and marketed in one Member State should, in principle, be freely sold in other Member States.

Q What are “mandatory requirements”?

They are legitimate public-interest grounds—such as consumer protection, public health, or effective fiscal supervision—that can justify national rules, provided the measures are proportionate.

Q Is Cassis de Dijon still important today?

Yes. It remains a cornerstone whenever the balance between market freedoms and regulation is discussed.

In Closing

Cassis de Dijon (1979) marks the starting line of the eternal balancing act: “free movement vs. reasonable regulation.” Studying this case always makes me ask whether there’s a less restrictive alternative. If consumer protection can be achieved through labelling or information duties, there’s little need to resort to an import ban. For problem questions, check the trio of mutual recognition—mandatory requirements—proportionality. Stuck on a tricky scenario? Drop it in the comments and we’ll craft a sharper answer together. 🙂