By: Ajit Singh Sidhu
Looking at case law it is fair to presume the Keck test is akin the wine botte that is kept at the back of the shelf and no one would ever open it as there is a better test ie Ker Opkita [1]supported by the Commission Notice Guidance (2021/(100/03) [2].This essay would take a historical approach to prove the point and show some clarity of why the keck test is not favoured with the defects of the KECK test to show why the courts needed to dpart with it .
Based on I.Antonaki the pre keck era “was dominated by the desired by negative integration to help with economic integration in the 1960 /70 “which is why cases like Dassonvile and Cassis Dejion were decided as focusing on would it make it harder for the seller to sell his[3] produces .With the idea of mutual recognition added in to reduce trade restriction ..
However there were many problems with this test as Dassonville commented by M.Horsepool of being wide defendant as the inetn to discriminate did not intent to be identified rather the effect of the action/omission .[4] This supported view of P.Oliver “of being nebulous” as its too wide [5]which is true as the test was so wide and the restrictions were hardly used.
This problems lead to AG Teasuro making a new test in C-292/92 which the courts adopted in keck.[6] By I.Antonaki “ to prevent an avalanche of cases “ [7]ie to lets the selling arrangements to be decided by the member state , the more favourable decision would allow for an improvement of the economy of the state as more business would invest there due to the lenient policy in the Member state . However the Keck test was deficient , L. Groemely, the divide between this 2 would not allow for the selling agreement to be reviewed [8]and S. Weatherhill of being to formalistic[9] .This can be opined true as selling arrangements are outside the ambit of EU law , but it is too rigid as it does not looks at is the product altered or the surrounding factors altered . Ie it cannot be denied a business man who has to increase his price to sell his product may find it hard to access the market .As a high priced item would be less enticing for the consumers to purchase hence impeding his access to the market .
In addition the keck test had some defects .As further seen in cases like c-418/93[10] , c-286/81[11] and c-362/88[12] , these cases where it were selling arrangements mean that it did not fall in the ambit of MEQR although in a rational sense it can hinder access to market test .In c-292/92[13] a reasonable person would agree that not allowing the advertisement of the item would hinder market access as consumers in the Member state would not know the product exist hence they would not be able to access the market .It can be submitted m marketing is needed to access the market of a certain demographic ,without marketing it can easily hinders ones access to the market as they cannot promote their products .
S. Weatherhill of being to formalistic .As not only selling arrangements are outside the ambit of EU law , but it is too rigid as it just looks at is the product altered or the surrounding factors altered . As above. Also this is not the case in real life .As selling agreements can eb divided in to 2 of dynamic selling arrangements[ etc rules that state when the shops are to be open] and non-static selling arrangements [etc way the item is marketed /advertised] .As the latter impact the access to markets as it can form an integral part of the goods ie if a member state makes it illegal to package toys in a colour packages kids will not buy as it concerns the product and the former can impact access to the market as his product would not be able to be sold at a specific time .As in c-110/05 further shows that the formalistic nature if keck does not allow for the divide between selling arrangement and product characteristics[14] .As it can be viewed the use of the vehicles there is illogical made in favour of it being a product requirement when it can be a selling arrangement
In addition the 2 qualification for the Keck test is a problem .As the rules pertaining sales need to relate to goods is a problem as the ECJ can interpret the rule as they please with little coherence and it would not allow to prevent a strict adherence to the law. As c-368/95 where it could be argued that the adding of the puzzle was relating to the product of the magazine , it was merely held a method of sale promotion .The lack of clarity and arbitrary of the CJEU in the interpretation of case .[15]As a reasonable person would agree that buy adding a crossword puzzle in a magazines is altering the product as the product is not the same anymore .Hence keck is deficient .
In this is why the Post keck era the courts decided to widen Art 34 by restraining the selling arrangements . As the Keck test was not to well favoured .The courts to seem to favour the influence of Ag Jacobs view of market access test .[16] In De Agostini[17] ,GIP [18], Commission v Italy [Trailers ] [19]and Alfa [20]use the straight forward and wide market access test which show the shrinking of Keck test . As see in LIBRO refence to the law commission notice [21]it was a MEQR to fix German language books in Austria as consumers would buy it less hence impacting the market access test and Scotch Whiskey to increase the price of whiskey to be an MEQR. [22]
The current test by the Commission is the Ker Opkita 2014 of “need a direct /substantial and significant effect for intra trade state “ [Prohibited sell the of lens via internet ] Commission Notice Guidance (2021/(100/03) which can include things in the past that were merely selling arrangements to be substantial hindrance to the market access test .In Para 4.4-a high price that item has to be sold if substantially impede access to market can bring an access . In para 4.5.2 of the notice =case c-61/12 if refuse to allow the vehicle registration due to it being a right sided car is a restriction of free movement of goods ,as it can impede the ability for claimant to sell the item as cannot use the vehicle .Also para 4.6 ban advertisement impedes access para ,4.3 =any type of bans that can impede aces to the goods .[23]
In Essence it’s anything that can impact access to market .Which shows keck is dead as the test used is different and more widen test .Although I.Antonaki argues the test exist but in a different form ie of substantial and not substantially impacting the market access test .Just like there can be day and night, black and white and yin and yang there can be substantial and non substantial .However I opine would exist in a lesser extent .[24]As seen by the Commission Notice virtually anything can be a hindrance to the market access test as above .
However the courts do not follow this approach and use a wider approach of anything that can restrict the freedom to access the market in recent cases .In C-472/14 the courts felt that despite the signing of the document to be non mandatory , the fact it can impact the access if the chemical to be sold as the claimant would be fined to hinder the market access test .[25]This shows the keck test is gone as the courts use a wider test now .
The courts recently experience confusion on which test to use , but the KECK test was not used rather the courts are rarely using it .As seen in c-663/18 the courts not only acknowledge the mutual recognition test as the CBD was produced legally in another Member state and was not a hallucinogenic and legal in EU law .[26] The courts said the ban did substantially impact the claimant ability to access the market . However in C-387/18 the courts the act of needing authorisation for over the counter medicine impacted market access of the claimant .[27] In C -407/20 the courts again used the significantly impact the market access test as the marketing of the HIV online test kit was not allowed .[28] Contrast c-387/18[29] and C-488/20[30] using the market access test in the matter of local law hinder the access to market of medicine, the courts did not focus on substantial but as long it impeded access to market test. Even in c-602/19 where it was held the requirement to obtain a license in the Member state just to be permitted to sell the medicine was impeding access to the market [31] .As seen all these cases albeit a different test show the keck test is not in use .
As a conclusion supported the proposition that looking at the history and development of case law .Th Keck test is like the wine in the cellar that is ignored and not use .As the courts have preferred a different flavour of the test one that is robust and wide .As seen above .The keck test exist but may never be in use in the future .
[1] https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62009CJ0108 [2] https://op.europa.eu/en/publication-detail/-/publication/a965bd4e-8b7a-11eb-b85c-01aa75ed71a1/language-en [3] https://www.elevenjournals.com/tijdschrift/ELR/2016/4/ELR_2016_09_04_003 [4] M.Horsepool, page 316, 5th edition [5] https://www.jstor.org/stable/10.1163/j.ctt1w76vj2.24?seq=1#metadata_info_tab_contents [6] https://dro.dur.ac.uk/9357/1/9357.pdf [7] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2906242 [8] https://core.ac.uk/download/pdf/144225863.pdf [9] https://www.jstor.org/stable/3663174 [10] https://curia.europa.eu/juris/liste.jsf?language=en&num=C-418/93 [11] https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A61981CJ0286 [12] https://curia.europa.eu/juris/showPdf.jsf?text=&docid=96376&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=16127967 [13] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61992CJ0292 [14] https://curia.europa.eu/juris/liste.jsf?num=C-110/05 [15] https://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=368/95&td=ALL [16] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61993CC0412&from=EN [17] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61995CJ0034 [18] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61998CJ0405 [19] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=ecli%3AECLI%3AEU%3AC%3A2009%3A66 [20] https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A62004CJ0158 [21] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC0323(03)&from=EN [22] https://curia.europa.eu/juris/liste.jsf?num=C-333/14 [23] All reference in ,https://op.europa.eu/en/publication-detail/-/publication/a965bd4e-8b7a-11eb-b85c-01aa75ed71a1/language-en [24] ibidi [25] https://curia.europa.eu/juris/liste.jsf?num=C-472/14&language=EN [26] https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-663/18 [27] https://curia.europa.eu/juris/liste.jsf?num=C-387/18&language=EN [28] https://curia.europa.eu/juris/showPdf.jsf;jsessionid=0721B8D428479CEF53F965024933A75E?text=food%2Bsupplements&docid=232844&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=4178502 [29] https://curia.europa.eu/juris/liste.jsf?num=C-387/18&language=EN [30] https://curia.europa.eu/juris/fiche.jsf?id=C%3B488%3B20%3BRP%3B1%3BP%3B1%3BC2020%2F0488%2FP&oqp=&for=&mat=LCM.RSTR.MEEQ%252Cor&lgrec=en&jge=&td=%3BALL&jur=C%2CT%2CF&dates=&pcs=Oor&lg=&pro=&nat=or&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&language=en&avg=&cid=16135927 [31] https://curia.europa.eu/juris/document/document.jsf?text=&docid=232149&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=16135927
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