What Keck and Mithouard Should Have Said: Preventing Substantial Barriers to Market Access

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 363-372 | What Should Have Said | (Abstract) This rewriting of Keck and Mithouard is based on three categories of measures having equivalent effect: (1) national measures which disadvantage imported goods, (2) product requirements and (3) indistinctly applicable measures capable of substantially impeding the access of goods to a Member State market. Thus, instead of the category of national measures relating to certain selling arrangements, Nachtnebel, Langrée and Rodger's judgment emphasises that national measures which do not discriminate directly or indirectly, and which do not qualify as 'product requirements' in the sense of Cassis de Dijon, must substantially impede market access in order to qualify as measures having equivalent effect. The resulting judgment roughly follows the approach of Advocate General Jacobs in Leclerc-Siplec.

Keywords

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