What Keck and Mithouard Should Have Said: 'Steady as She Goes, Left Hand Down a Bit?'

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 393-403 | What Should Have Said | (Abstract) This rewriting of Keck and Mithouard unequivocally states that the French prohibition on sale at a loss is a measure having equivalent effect, and relies to this effect on the Oosthoek line of case law. Gormley's judgment aims to closely follow the logic of earlier case law, including the Sunday trading case law. The judgment also concludes that a general prohibition of sale at a loss is contrary to Article 30 EEC. Insofar as such a general prohibition takes no account of the reason why the products are offered at a loss, it goes beyond what is necessary and proportionate to ensure fair trading and the protection of consumers. Also in regard to proportionality, the judgment aims to strictly follow the 1980s case law, starting with Cassis de Dijon.

Keywords

• free movement of goods
• article 30 eec
• article 34 tfeu
• internal market
• measures having equivalent effect
• certain selling arrangements