Summary - Selling Arrangements

Selling Arrangements: Keeping Keck/Accentuating the positive: the selling arrangement. EU  Journal based around decisions in: Commission v Italy (Italian Trailers) and Mickelsson and Roos: fundamentally altered the principles applicable to art.34 TFEU. Following this market access test seeping in and limiting the Keck doctrine. Market access defines the scope of Art. 34. In effect supersedes Dassonville  In these case court: tries to 1) provide definition of art.34 TFEU 2) concept of QR and MEQR <- Commentators: finding of what a QR or MEQR is departs from earlier jurisprudence and moves towards universal, strict access test. CJEU: it’s a consolidation and clarification of case law. Clash of explanations.   Earlier jurisprudence:      Case law clear that: any measure the effects of which on intra-Community trade are indirect and uncertain falls outside the scope of art.34 TFEUbut less clear on the effects that bring it into that measure. Retrospective look at case law: 2 strands of jurisprudence become apparent by which discriminatory measures or those that prevent market access have been brought under art.34 Dassonville: capable of hindering, directly or indirectly, actually or potentially, intra-Community trade” should be considered as measures having an effect equivalent to quantitative restrictions  Wide definition ANY TRADING RULE CAPABLE OF HINDERING TRADE, anything that imposes a double burden. Cassis: mutual recognition. Ambit/scope of these two principles was uncertain b/c they were specific to cases concerning certificates and product requirements: these usually = dual burdens on importers/exporters which are lawfully produced and in another MS in fact (look at facts) not in law. RECONCILING CASSIS AND DASSONVILLE AND GENERALISING THE PRINCIPLES: specific expressions of principle of non-discrimination.  Cassis was afÏrmed in French Distillation: obstacles to trade due to restrictions on the “marketing and use” of products did not constitute measures equivalent to quantitative restrictions as long as they applied without distinction to imported and domestic products  Groenveld: Since indistinctly applicable measures did not impose a dual-burden on exporters which, unlike importers, merely had to follow the same rules laid down in the domestic market in art.35 TFEU (ex 29 EC) and the notion of measures equivalent to quantitative export restrictions referred to a test of discrimination.  General prohibitions come under Art.34- no need to look at discrimination. Art.36= “prohibitions and restrictions of imports”, from which it implicitly flowedthat prohibitions per se fell within art.34 TFEU; prohibition of certain products automatically prohibited by provision regardless of whether trade on the domestic product market was also banned.14 Affect everyone same in law and fact? (in a PQ look at the law that the rule is contained in and look for anything that suggests it affects people differently in FACT) If so,   The application of these rules on products lawfully made in another MS (In PQ look is it another MS?) Meeting the requirements in that state Does it prohibit intra-community trade? We will consider this by the first Keck Test of determining if the rule is a MEQR does it prevent their access to the market? (This should be obvious) If it doesn’t move on to stage 2 (if it does could you say it would clearly discriminately restrict intra-community trade) Does it discriminately restrict intra-community trade? Test in other words = did it impede (so not complete prevention) access more than access of domestic products were (so both could be impeded, Q of degree?) This is the limb through which most MEQRs are caught- the easier limb to satisfy Sandoz this did not apply only to prohibitions de jure, but to any measure which de facto had the effect of preventing market access: making the marketing of new products conditional on proof of existing demand. Anything that merely impedes won’t fall within art.34 (quotas)- as long as it doesn’t completely prevent and affects domestic and foreign products alike. Explaining Dassonville and Cassis: at first struggling to deal with these cases in a consistent manner, the Court increasingly engaged in assessments of discriminatory effects, the absence of which regularly resulted in a finding that the measure was not such as to hinder intra-Community trade within the meaning of Dassonville. Selling Arrangements: Keeping Keck/Accentuating the positive: the selling arrangement. EU This expansion of discriminatory analysis results in Keck: Restrictions on certain selling arrangements were found to fall outside the scope of art.34 TFEU as long as the measures were non-discriminatory in law and in fact  MEQRs = last 2 columns Post Keck cases: Keck principle being applied: AfÏrm emergence of the non-discrimination principle as general criterion that determines the scope of Art.34. Criminal Proceedings against Franzén licensing system involved additional costs for imported goods .Decker v Caisse de Maladie des Employes Prives Canal Satélite Digital SL v Administracion General del Estad prior authorisation scheme rendered purchase of imported products more difÏcult refusal to recognise the equivalence of certificates issues by a Member State, amounted to a dualburden for products lawfully made in another Member State. A-Gs and commentators push for strict market access test: employ Dassonville formula outside the field of product requirements and thus also for non-discriminatory measures. DocMoris = rejects the above propositions and holds on to Keck test is not for market analysis it is to look at whether the IAM is more of an obstacle” to imported products than domestic ones.  PQ ask is the IAM more of an obstacle to imported products. Consolidation and clarification: Italian Trailers and Mickelsson and Roos 3 proposals on deciding whether the prohibition = restriction: A.G. Legér in Italian Trailers: Dassonville formula: regulation= restriction. A.G. Kokott Mickelsson and Roos: take into account the specific nature of use regulations and suggested analogous application of the Keck doctrine. A-G Bot (Italian Trailers: Grand Chamber): strict market access test analogous to that which the Court had rejected as concerned selling arrangements in Leclerc-Siplec;Doc Morris CJEU: response= 3 fold: Number 1: Number 2: it flows from these principles that: Number 3: Bring the principles together: Dassonville: Potential risk of hindering intra-community trade? art.34 TFEU: 1 Product requirements= per se MEQR BUT SELLING ARRANGEMENTS ONLY = MEQR IF directly or indirectly discriminatory: benchmark is whether the measure prohibits intra-Community trade or in practice produces similar effects measures adopted by MS the object or effect of which is to treat other MS products less favourably = MEQRs on imports within meaning of Art.34 (a) reflects the principles of non-discrimination ( Keck ) (b) mutual recognition of products lawfully manufactured and marketed in other Member States (Cassis ) (c) the principle of free access (Sandoz) = positive formulation of the principle that Member States may not de facto prevent market accessit’s not as open ended as it seems. Selling Arrangements: Keeping Keck/Accentuating the positive: the selling arrangement. EU Wording of the judgment shows that the ruling amounts to an application and consolidation of existing principles rather than marking a new twist in the case law. Explicit statement that non-discrimination is the criterion- this was only implicit in Keck. This reasoning followed up in Mickelsson and Roos. Following Groenveld Art.35 is to be judged by nondiscrimination  MEQR measure which “hinder market access” benchmark is whether the measure prohibits intra-Community trade or in practice produces similar effects  ReafÏrmation of Keck may show reflection of the fact that the “prevent market access” test has never played a very significant role alongside the test of discriminatory restrictions of market access. Court followed A-G Kokkott.  Mickelsson v Roos: Non-discriminatory measures are such as to hinder access to the market within the meaning of art.34 TFEU only if they prevent or greatly restrict use for the specific and inherent purposes for which the products are intended. where national regulations … have the effect of preventing users of … [the products] from using them for the specific and inherent purposes for which they were intended? or of greatly restricting their use? this is for the national court to ascertain And therefore have the effect of hindering the access to the domestic market in questions for those goods This is known as the market hindrance test: Seen as having a high threshold. Significantly more qualified than the “substantial” market access test first proposed by A.G. Jacobs in Leclerc-Siplec. A-G Jacobs’ test: when concerned with non-discriminatory barriers to market access the dividing line b’wn “the insignificant to a quasi-prohibition” and the more serious prohibitions should be whether “the effect of the measure is direct or indirect, immediate or remote, or purely speculative and uncertain”[If direct and immediateit’s a substantial restriction and should be under art.34] This underlying de minimis test seemed foremost designed to justify that a substantial body of non-discriminatory measures should be deemed significant enough to fall within art.34 TFEU. Added Value:  Italian Trailers: product requirements, of course, fall squarely within the scope of art.34 TFEU, whereas the same only holds true for other measures, including selling arrangements, if discriminatory effects are established. Otherwise, if proven non-discriminatory in law and in fact, such measures may subsequently be subject to a market hindrance test. marketing restrictions which compel the producer to adapt the products to the rules in force in the Member State in which they are marketed prevent the measures from being considered as a selling arrangement. Such measures fall instead within the fold of product requirements within the meaning of Cassis restrictions on those sales methods which constitute “more significant ways of gaining direct access to the … market” for imported goods than domestic ones will be considered discriminatory in fact1: prohibitions of internet and mail-order sale of medicinal products: Doc Morris. prohibitions of (itinerant) sale for traders established outside the vicinity of the consumer TK-Heimdienst restrictions on sales promotion (e.g. advertisement and pricing policies) and certain sales methods (door-to-door sales, itinerant sales, telephone sales, etc.): When judging if these are discriminatory the scope of the restrictive measure concerned must be ascertained: moderate restrictions on sales promotion will be considered nondiscriminatory2: Herbert Karner Industrie. Substantial restriction = Discriminatory in fact: Gourmet International Products ; Douwe Egberts; De Agostini sales methods which by nature are completely neutral in terms of gaining access to the market for imported and domestic products, e.g. restrictions on retail distribution, and more particularly rules as to where, when and by whom products may be sold. restrictions on certain forms of retail sale will normally only partially affect market access, while leaving other channels open – Doesn’t meet market hindrance test. Selling Arrangements: 1 they require, in effect, establishment in the territory of another Member State in order gain access to that market, and are therefore by nature discriminatory. 2 This doesn’t meet high threshold of market hindrance Selling Arrangements: Keeping Keck/Accentuating the positive: the selling arrangement. EU Conclusion: Italian Trailers and Mickelsson and Roos have consolidated and clarified what was implicit in Keck, namely that art.34 TFEU prohibits measures that discriminatorily, in law or in fact, restrict market access for imported products or which prevent/hinder market access. Court ostensibly introduced a new category of measures falling within the scope of art.34 TFEU, non-discriminatory measures which “hinder access to the market”. Test of discrimination, in particular in the increasingly strict manner applied by the Court, ensures that imported products are guaranteed the same access to the market as domestic goods. Accentuating the positive: the 2 nd article The concept of the selling arrangement has encroached into areas of business activity, national preferences with respect to the closing hours of shops have been respected; the selling arrangement moulded into a tool capable of achieving a fine balance b’wn free trade and national traditions and practices. Recognition that it may be detrimental to free trade to ignore traditional differences that exist. General trading conditions (such as those in Keck) or Sunday trading laws are not directed at the product itself so they shouldn’t be subject to Article 28. When will the hindrance to trade be “too uncertain and indirect?” what is the scope ambit of this? (is this another reason to criticise Jacob’s proposition as well?) Is the advent of the selling arrangement there just to imbue an enforced circumspection among traders- i.e. to make them wary to use national courts for art.28 (now art.34?) issues? If so (Which it appears to do look at the expansion of the test in Mickelsson v Roos and Italian Traders to be “market hindrance) then it’s introduction under Keck is justified.