SELLING ARRANGEMENTS

Question 1

SCOPE OF ARTICLE 34

Answer 1

• application of dassonville and cassis became problematic as scope was too wide of art 34
• before Keck law was inconsistent such as in Oebel which stated issue fell outside art 34
• however in cinetheque which found it was inside

Question 2

KECK

Answer 2

• Keck addressed inconsistencies and created a set of rules
• it found that measures applied by MS to products that prohibit or restrict certain selling arrangements fall outside scope of art 34 provided that:
• they apply to all traders in territory
• they affect both domestic and imported food equally in law and in fact
• not intended to regulate trade between MS
• Keck provides new classification such as discriminatory measures and can only be justified on grounds listed in art 36
• dual burden (product requirements) measure which only apply to IAMs can be justified on art 36 or mandatory requirements these measure are same in law but different burden in fact
• equal burden measures which are selling arrangements outside art 34 of meets Keck test

For examples of potential selling arrangements see slides

Question 3

PROBLEMS WITH KECK

Answer 3

• fixed or static selling arrangements concern rules regarding time and place goods are sold
• dynamic or non static selling arrangements are rules concerning the marketing of products this can restrict access to market
• also when is a selling arrangement not one ?
• when the selling arrangement affects domestic traders and importers differently as unequal burden in law or fact
• ## certain discriminatory arrangements beach art 34 unless justified like IAMs