Gourmet Can Have His Keck and Eat It!

• Date: 01 July 2004
• DOI: http://doi.org/10.1111/j.1468-0386.2004.00226.x
• Published date: 01 July 2004
• Author: Alina Kaczorowska

Gourmet Can Have His Keck

and Eat It!

Alina Kaczorowska*

Abstract: The touchstone of the judgment of the Court of Justice in Keck has been the

question of how to apply the criteria allowing the exclusion of selling arrangements from

the scope of Article 28 EC, in particular in respect of national regulatory rules relating

to advertisement. This article examines the evolution of the Court’s approach to selling

arrangements in the light of the requirements set out in Keck.The judgment in Gourmet

has added to the debates as it highlights the issue of the ‘market access’ test as a refer-

ence for the assessment of factual discrimination in respect of selling arrangements

covered by the Keck exception. The article focuses on the impact of Gourmet on the

determination of the outer limits of the scope of application of Article 28 EC, and thus

attempts to find a place for Gourmet within the spectrum between the rejection of the

judgment in Keck at one end, and the refinement of the requirement relating to ensuring

that there is no factual discrimination between imported and domestic products in the

application of national rules covered by the Keck exception, at the other.

I Introduction

The judgments of the Court of Justice have been fundamental to the creation of the

European single market. This article examines several recent important cases in this

light.

Konsumentombudsmannen (KO) v Gourmet International Products AB (Gourmet)1is

particularly interesting for two reasons: first, the Court of Justice held, for the first time

since its ruling in Keck,2that national rules imposing an almost total ban on advertis-

ing of alcoholic beverages would not automatically escape the application of the Das-

sonville formula.3Second, there were no Community harmonisation measures involved

as was the situation in Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag

AB and TV-Shop I Sveringe AB.4

European Law Journal, Vol.10, No. 4, July 2004, pp. 479–494.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Principal Lecturer in Law, School of Law, Southampton Institute.

1Case C-405/98 Konsumentombudsmannen (KO) v Gourmet International Products AB [2001] ECR I-1795.

2Joined Cases C-267 and 268/91 Criminal Proceedings against Bernard Keck and Daniel Mithouard [1993]

ECR I-6097.

3Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837.

4Joined Cases C-34/95 to C-36/95 Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB and

TV-Shop I Sveringe AB [1997] ECR I-3843.

In Gourmet,the Court of Justice focused on the requirement set out in Keck that

national rules relating to selling arrangements must ensure factual equality in treatment

between imported goods and domestic goods in terms of their access to the market in

the Member State of importation. This ‘market access’ test is not new as a reference

for the assessment of restrictions to the free movement of goods. It was previously sug-

gested in Torfaen Borough Council v B&Q plc5by Advocate General Van Gerven and

further refined by Advocate-General Jacobs in his Opinion in Société d’Importation

Eduard Leclerc-Siplec v TF1Publicité SA and M6 Publicité SA.6However, the empha-

sis put on the ‘access to the market’ test by the Court of Justice in Gourmet constitutes

a new and interesting development, taking into account that the requirement as to legal

equality in the treatment of domestic goods and imported goods set out in Keck is no

more than a tautological statement. Indeed, the prerequisite to allowing national regu-

latory rules relating to selling arrangements to escape the application of Article 28 EC

is that they are non-discriminatory. Any national rules that exert a protectionist effect

in favour of domestic products fall automatically within the scope of Article 28 EC.

The task of assessing legal equality in the effect of national rules on imported prod-

ucts is not difficult. If national rules apply to domestic and imported products without

any distinction as to the origin of the product there is no discrimination in law.

However, it is a more complex and difficult task to assess factual equality in the effect

that national rules relating to selling arrangements have on imported products as com-

pared to domestic products; in particular in the light of the statement of the Court of

Justice in Keck that such rules are allowed to restrict the volume of sales of imported

products by depriving importers of certain methods of sales promotion.

The first part of this article will focus on the evolution of the approach of the Court

of Justice to national rules relating to selling arrangements covered by the Keck excep-

tion. The second part will examine the more realistic approach to national rules pro-

hibiting or severely restricting advertisement taken by the Court of Justice in Gourmet.

Aparticular emphasis will be placed on the criteria upon which factual discrimination

in respect of selling arrangements covered by the Keck exception will be assessed.

II The Evolution of the Approach of the Court of Justice to National Rules

Relating to Selling Arrangements Covered by the Keck Exception

In Keck,the Court of Justice moved away from the wide application of the Dassonville

formula and, thus, set new limits on Article 28 EC. After re-examining its case law on

the scope of Article 28 EC, the Court of Justice departed from its earlier decisions by

stating that the Dassonville formula does not apply to selling arrangements if national

rules, which are prima faciecontrary to Article 28 EC, affect all traders operating within

the national territory and provided that they affect in the same manner, in law and in

fact, the marketing of both domestic and imported products, even though they may

have some impact on the overall volume of sales.7The Court of Justice concluded by

stating:

European Law Journal Volume 10

480 © Blackwell Publishing Ltd. 2004

5Case C-145/88 Torfaen Borough Council v B&Q plc [1989] ECR I-3851, para 23.

6C-412/93 Société d’Importation Eduard Leclerc-Siplec v TF1Publicité SA and M6 Publicité SA [1995] ECR

I-179.

7Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, para 15.