What Keck and Mithouard Should Have Said: ‘Steady as She Goes, Left Hand down a Bit?’

Abstract: This rewriting of Keck and Mithouard (joined cases C-267/91 and C-268/91 ECLI:EU:C:1993:905) unequivocally states that the French prohibition on sale at a loss is a measure having equivalent effect, and relies to this effect on the Oosthoek line of case law. Gormley's judgment aims to closely follow the logic of earlier case law, including the Sunday trading case law. The judgment also concludes that a general prohibition of sale at a loss is contrary to art. 30 EEC. Insofar as such a general prohibition takes no account of the reason why the products are offered at a loss, it goes beyond what is necessary and proportionate to ensure fair trading and the protection of consumers. Also in regard to proportionality, the judgment aims to strictly follow the 1980s case law, starting with Cassis de Dijon (case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein ECLI:EU:C:1979:42).

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

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European Papers, Vol. 8, 2023, No 1, pp. 393-403
ISSN 2499-8249 - doi: 10.15166/2499-8249/661

* Professor, College of Europe, Bruges; Emeritus Professor, University of Groningen, l.w.gormley@rug.nl.