Sales modality
In addition to the general meaning of the term, the sales modality is a technical term from EU law and the case law of the ECJ .
General sales and distribution modalities are regulations of a member state of the EU , which, in contrast to product-related rules, only concern the sales opportunities and distribution channels of the goods, for example regulations on shop opening times, advertising and pricing with regard to the free movement of goods within the EC. The relevance of this term is for the question of whether a national regulation intervenes in the protection area of the free movement of goods or not.
In the Keck decision , the ECJ differentiated between product-related rules and general sales modalities, removing those sales modalities from the scope of the free movement of goods within the framework of Art. 34 TFEU (Treaty on the Functioning of the European Union) that
a) apply generally to all economic operators who carry out their activities in Switzerland and
b) have the same effect on the sale of domestic and imported products, that is, do not predominantly affect imported products.
Such regulations do not block or hinder market access for foreign products more than for domestic products and are not a measure with equivalent effect within the meaning of Art. 34 TFEU and are therefore excluded from its scope. For product-related regulations (e.g. quality, description, shape, dimensions, weight, labeling, packaging of the product), Art. 34 TFEU shall apply.
A special feature of the demarcation of the sales modalities from product-related regulations concerns the regulations on advertising: If an advertising ban affects the product presentation (e.g. the design of the product packaging), this provision does not qualify as a general sales modality, but as a product-related regulation. Only if an advertising regulation does not affect the physical appearance of the product is this provision to be assigned to the area of general sales modalities.
Even if a sales and marketing modality, for example the prohibition of selling below the purchase price (see Keck decision ) or the prohibition of television advertising for certain products and economic sectors, may interfere with intergovernmental action because of a certain form of sale or promotion is not possible, Art. 34 TFEU does not apply as long as these regulations apply indiscriminately and do not affect imported products.
Difficulties can arise in individual cases as to whether a sales modality has the same effect on the sale of domestic and imported products because, on the one hand, the domestic products are always "closer" to the domestic market and, on the other hand, the suppliers of imported products have access to the The sales market. Example: The ban on using a certain advertising medium or using a distribution channel applies in general to all economic operators, but has a predominantly negative effect on imported products, as the domestic products are usually already known to the consumer. This means that market access for products from other Member States is more difficult, which means a different effect. Such a sales modality violates the scope of protection of Art. 34 TFEU. The encroachment on Art. 34 TFEU is generally lawful because it is justified by compelling reasons in the general interest (immanent limitations of Art. 34 TFEU according to the Cassis formula ) or under Art. 36 TFEU. For example, the ban on selling approved drugs outside of pharmacies, in particular via mail order online, is justified for prescription drugs by compelling reasons for the general good, but not for non-prescription drugs.
Individual evidence
- ↑ Eckhard Höffner: Export in the internal market of the European Union Online ( Memento of the original from June 25, 2011 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Markus Schmitt: The mail order business with pharmaceuticals in the EU after the ECJ ruling DocMorris: national sales modality as an inadmissible market access restriction? ISBN 978-3638305433
