Bold decision

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In the Keck decision of 1993, the European Court of Justice (ECJ) laid down basic rules for the interpretation and scope of Art. 34 TFEU (ex-Art. 28 EGV ) (at that time still Art. 30 EWGV ), which were determined by the plaintiff in the proceedings became known as the Keck formula or Keck principles .

Facts and subject of dispute

Bernard Keck and Daniel Mithouard, both responsible managers of shopping centers in France , were to be convicted by French courts of selling goods below the purchase price . In the national main proceedings, both asserted that this French prohibition was incompatible with the principle of the free movement of goods (Art. 34 TFEU (ex-Art. 28 TEC)), since none in other EC countries (e.g. at the same time in Germany ) There were restrictions on the sale of goods below the purchase price. The court in the main proceedings therefore applied to the ECJ to clarify whether the European treaties preclude the prohibition of the sale of goods below the purchase price.

The ECJ denied this view by excluding the prohibition of resale at a loss as a general sales modality (and thus not an obstacle to market access) from the scope of Art. 34 TFEU (ex-Art. 28 EGV) and thus considered it to be compatible with the free movement of goods.

Consequences of the judgment

The regional restrictions on market freedom are legitimate if

  • the regulations affect all affected market participants who carry out their activities in Germany equally,
  • the sales modalities ( sales- related trade regulations) affect domestic products as well as products from other EU countries (formerly EC countries) in the same way legally and actually (indiscriminate measures).

One example of this is the German shop closing law .

In the Keck decision, the ECJ restricted the very far-reaching definition of a measure with equivalent effect within the meaning of Art. 34 TFEU (ex-Art. 28 EGV), which was previously contained in the Dassonville decision .

literature

  • ECJ, ruling v. November 24, 1993, Case C-267/91 et al. C-268/91 - Keck and Mithouard - Coll. 1993, pp. I-6097 ff.
  • Publications Office: Keck judgment