Keck and Mithouard Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097
Keck and Mithouard limited the reach of the Treaty prohibition on measures equivalent to quantitative restrictions. It distinguished product requirements from certain non-discriminatory rules governing how goods are sold, now commonly described as selling arrangements.
Facts
Bernard Keck and Daniel Mithouard were prosecuted in France for reselling products in an unaltered state at prices below their purchase price. French legislation imposed a general prohibition on resale at a loss. They argued that the prohibition restricted competition and was incompatible with the Treaty rules on free movement, particularly former Article 30 EEC. The Tribunal de grande instance de Strasbourg stayed both criminal proceedings and asked the European Court of Justice whether the rule was compatible with Community law. The reference arose against a background in which traders increasingly invoked Article 30 against national measures limiting commercial freedom even when the measures were not directed at imports. The Court used the cases to clarify the limits of its earlier Dassonville and Cassis de Dijon jurisprudence.
Legal Issue
Did a general national prohibition on resale at a loss constitute a measure having equivalent effect to a quantitative restriction on imports under former Article 30 EEC?
Held
The European Court of Justice held that former Article 30 did not apply to the French prohibition. Product requirements concerning matters such as composition, designation, packaging or labelling remained within the Treaty rule, subject to possible justification. By contrast, national provisions restricting or prohibiting certain selling arrangements fall outside that rule when two cumulative conditions are satisfied: they apply to all relevant traders operating within the territory, and they affect domestic and imported products in the same manner in law and in fact. The resale-at-a-loss rule concerned a method of sale rather than the characteristics of goods and met both conditions. It therefore did not impede market access for imports more than for domestic products.
⭐ Legal Principle
A non-discriminatory selling arrangement falls outside Article 34 TFEU where it applies to every relevant trader in the national territory and affects the marketing of domestic and imported goods equally in law and in fact. Product requirements remain subject to the broader free-movement analysis, as do selling rules that fail either limb of the Keck test.
Significance
Keck sought to prevent Article 34 from becoming a general means of challenging national regulation of commercial activity. It narrowed Dassonville while preserving Cassis de Dijon for product requirements. The classification is not conclusive if a rule burdens imported goods more heavily in practice. Later judgments, including Commission v Italy and Mickelsson and Roos, emphasise market access where use restrictions substantially hinder access to a Member State's market. The United Kingdom is no longer generally governed by Article 34, but the case remains relevant to EU internal-market law and to UK contexts in which post-Brexit arrangements preserve applicable EU goods rules.
Common exam questions about this case
What two conditions must a selling arrangement satisfy to fall outside Article 34 under Keck?
The rule must apply to all relevant traders operating within the national territory and must affect the marketing of domestic goods and goods from other Member States in the same manner, both in law and in fact. These are cumulative requirements. A formally equal rule remains within Article 34 if imported goods suffer a greater practical disadvantage.
Why was the French ban on resale at a loss outside former Article 30?
The prohibition regulated a sales method rather than a product's composition, presentation or other characteristics. It applied to traders throughout France without distinction and, on the material before the Court, affected domestic and imported products in the same way in law and fact. It was therefore a qualifying selling arrangement rather than a measure equivalent to a quantitative restriction.
Does Keck exclude every rule about the sale or use of goods from Article 34 TFEU?
No. A selling arrangement is excluded only if it meets both equality conditions. A discriminatory advertising or sales rule can remain caught. Rules about product use also require separate analysis. Later case law asks whether such restrictions substantially impede market access, so describing a measure as commercially regulatory does not by itself place it outside Article 34.