What Keck and Mithouard Should Have Said: It Could Have Been so Simple

Abstract: This rewriting of Keck and Mithouard (joined cases C-267/91 and C-268/91 ECLI:EU:C:1993:905) maintains the basic underlying philosophy of the Keck judgment but dispenses with the terminology of ‘certain selling arrangements’. Enchelmaier’s judgment squarely overturns the Sunday trading case law by stating that Member States ‘need not justify rules that apply equally in law, and do not entail greater factual burdens for imported than for domestic goods’. The judgment allows for only one exception to this rule, namely that "universal bans" – i.e. national measures prohibiting the marketing of a type or types of product altogether – must be justified because they raise legislative frontier to trade contrary to what is now art. 26(2) TFEU.

Keywords: free movement of goods – art. 30 EEC – art. 34 TFEU – internal market – measures having equivalent effect – certain selling arrangements.

--------------------
European Papers, Vol. 8, 2023, No 1, pp. 385-391
ISSN 2499-8249 - doi: 10.15166/2499-8249/660

* Professor of European and Comparative Law, University of Oxford, stefan.enchelmaier@law.ox.ac.uk.