Test Satisfactory

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The aim of this essay is to examine if the Keck[1] test is unsatisfactory, too rigid and places too much emphasis on law and fact, rather than market access[2] and consider that there are no clear outer boundaries to the Article. Article 34 of The Treaty on The Functioning of The European Union (TFEU) prohibits Members States (MS) from discriminating against imported goods by favouring domestic products, unless the MS can establish a justifiable cause[3]. The case of Dassonville[4] established the courts need to look into issue of national legislation that would constitute a measure equivalent to quantitative restrictions (MEQR). It was held that Article 34 would have a broad definition that measures which were “capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as [MEQRs]”[5]. The issue that arose from the ruling was that the formula, theoretically established that all national measures from other MSs could be caught under Article 34. The issue that arose from the case of Dassonville, was whether the formula should catch all national measure even those close to restricting trade or should there be test that would allow a MS to escape the formula? It was the case of Keck that formulated the test that allowed MSs to escape the Dassonville formula; it was created to change the structure of free movement of goods and the scope of Article 34. Keck is used to determine whether MS legislation directly, indirectly, actually or potentially hinders trade within the Dassonville formula. The Keck test for defining if a measure is non-discriminatory is whether the measure has equivalent effect and in turn has to be justified. Keck has two rules, the first rule deals with product-bound measures, which imposes additional requirements on the product. These requirements are seen to restrict trade and fall within the scope of article 34. The second rule deals with selling arrangements, these are rules that regulate when[6], where and by whom goods may be sold[7], advertising restrictions[8] and price controls[9]. There rules by their nature do not impede the market access of imported products more than they prevent the market access of domestic products, provided that they apply to all relevant traders within the national territory and apply equally in law and fact to domestic and imported products, if they meet these criteria they fall outside the scope of Article 34. The issue that Keck had was with dealing with measures of intra-community trade that were too uncertain or indirect to warrant the use of Article 34. Hünermund[10] showed how far the European Court of Justice (ECJ), were willing to stretch the scope of the term ‘selling arrangement’ outlined in Keck. The ECJ referred to Keck and the conditions that had to be satisfied before the German rule of prohibiting pharmacists from advertising pharmaceutical products outside their pharmacy, fell outside the scope of Article 34. In this case the conditions were satisfied and the German rule was found to be compatible with EU law. In Leclerc-Siplec,

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