European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Since the Keck and Mithouard judgment , the courts have made a distinction between selling arrangements and product characteristics, the first being presumed lawful due to smaller links with the free movement of goods. 
The concept of selling arrangements for products encompasses the methods of promotion, distribution and, more generally, the conditions under which they are marketed. Examples incl …

Measures concerning selling arrangements

Since the Keck and Mithouard judgment , the courts have made a distinction between selling arrangements and product characteristics, the first being presumed lawful due to smaller links with the free movement of goods. 

The concept of selling arrangements for products encompasses the methods of promotion, distribution and, more generally, the conditions under which they are marketed. Examples include national measures which: reserve the sale of processed milk for infants solely to pharmacies , establish circumstances relating to the times and places at which the goods may be sold to consumers , or which prohibit resale at a loss  or with only a very low profit margin , advertising outside pharmacies for quasi-pharmaceutical products , television advertising in the distribution sector , sale in private homes , itinerant sales , mail order sales , or the retail sale of manufactured tobacco outside authorized outlets . The fact that the prohibited marketing method appears to be more efficient and profitable  or that the Member State does not itself produce the goods for which it prohibits certain selling arrangements  is irrelevant.

The line between selling arrangements and characteristics of the product is not always easy to draw. Although the selling arrangements classification was refused for national legislation making the marketing of image storage media through mail order subject to a national procedure of examination and classification for the purpose of protecting young persons where it involved products being required to bear a label , by contrast and more surprisingly, it was accepted in respect of the requirement for prior packaging on the sale of partly baked bread, whether deep-frozen or not, imported from another Member State . In this case, the solution would appear to be justified due to the specific nature of the product - packaged pre-baked bread - the manufacturing process of which, i.e. cooking, being only finalized at the time of its sale.

The presumed lawfulness on selling arrangements is not however irrefutable. The Court may immediately exclude the Article 34 TFEU prohibition without checking that the national measure, although applied without distinction, does not, differently and to a greater degree, in law and in fact, affect the marketing of imported products. For example, the Court checks whether the general prohibition on selling and collecting orders for silver jewellery in a door-to-door selling situation is not in fact liable to impede yet more the access to the market of the imported products . At the end of that check, prohibition is sometimes decided .

Case C-267/91 Keck and Mithouard [1993] ECR I-6097, LawLex201100000270JBJ.

Case C-391/92 Commission v Greece [1995] ECR I-1621, LawLex200900000650JBJ.

Case C-387/93 Criminal proceedings against Banchero [1995] ECR I-4663, LawLex200400003560JBJ.

Case C-441/04 A-Punkt Schmuckhandel [2006] ECR I-2093, LawLex200900000832JBJ.

Case C-244/06 Dynamic Medien [2008] ECR I-505, LawLex200900000916JBJ; See also Case C-143/03 Commission v Italy, not available in English: which does not retain the classification as 'selling arrangements' for a national provision requiring the product or its packaging to be adjusted.

Case C-416/00 Morellato [2003] ECR I-9343, LawLex200900000763JBJ.

Case C-34/95 Konsumentombudsmannen v De Agostini and TV-Shop [1997] ECR I-3843, LawLex200900000391JBJ; Case C-405-98 Gourmet International Products [2001] ECR I-1795, LawLex200900000712JBJ: total prohibition on television advertising; Case C-254/98 TK-Heimdienst [2000] ECR I-151, LawLex200700001618JBJ: a national law allowing the sale of foodstuffs on rounds in an administrative district only by operators trading from a permanent establishment in that district or an adjacent municipality was regarded as an impediment of access to products from other Member States to the market due to additional establishment costs.

Case C-401/92 Criminal proceedings against Tankstation't Heukske and Boermans [1994] ECR I-2199, LawLex200900000686JBJ; See, also, Case C-418/93 Semeraro Casa Uno and others v Sindaco del Comune di Erbusco and others [1996] ECR I-2975, LawLex200900000338JBJ.

Case C-63/94 Belgapom v ITM and Vocarex [1995] ECR I-2467, LawLex200900001035JBJ. See also, for case law prior to the Keck judgment, relating to the fixing of the price of the product, which should be presumed lawful: Case 82/77 Van Tiggele [1978] ECR 25, LawLex200500005387JBJ and Case 231/83 Cullet v Leclerc [1985] ECR 305, LawLex200400003563JBJ (fixing of a minimum retail selling price); Case 229/83 Leclerc v Au blé vert [1985] ECR 1, LawLex200500003763JBJ (imposition of a retail price to be fixed by the publisher which prevents the importer from passing on in the retail price an advantage resulting from a lower price obtained in the exporting State); Case 78/82 Commission v Italy [1983] ECR 1955, LawLex200900002185JBJ (regulation approved because it does not breach the freedom of producers to fix retail selling prices for their products, and in particular to take advantage of more competitive production costs or to pass on higher production costs in their entirety).

Case C-292/92 Hünermund and others v Landesapothekerkammer Baden-Württemberg [1993] ECR I-6787, LawLex200300003892JBJ.

Case C-34/95 Konsumentombudsmannen v De Agostini and TV-Shop [1997] ECR I-3843, LawLex200900000391JBJ.

Case C-20/03 Burmanjer and others [2005] ECR I-4133, LawLex200900001071JBJ.

Case C-244/06 Dynamic Medien [2008] ECR I-505, LawLex200900000916JBJ.

European Business Law

35. Measures concerning selling arrangements

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Les décisions de justice citées dans ce paragraphe :

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35. Measures concerning selling arrangements

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise