C-267/91, Keck and Mithouard [1993]

1. Facts

• Issue: The French government prohibited the sale of goods below their purchasing price (at a loss). This measure aimed to prevent market monopolisation by large conglomerates.

2. Outcome

• Decision: The Court found that this prohibition did not violate Article 34 TFEU. The ruling established that certain selling arrangements do not fall under Article 34.

3. Impact and Analysis

Distinction:

◦ Product Requirements: These involve rules affecting the characteristics or content of the product (e.g., form, size, weight, composition). Such requirements fall under Article 34 TFEU.

◦ Selling Arrangements: These concern rules on how a product can be sold. Non-discriminatory selling arrangements are generally considered to fall outside the scope of Article 34.

• Para 16: Two Problems:

1. Definition of 'Certain Selling Arrangements': The judgment implied that some selling arrangements were not subject to the same scrutiny as others, though it has long been understood that all selling arrangements are considered.

2. Two-Fold Test:

▪ (1) The arrangement must apply to all relevant traders within the national territory.

▪ (2) It must affect the marketing of domestic products and products from other Member States in the same manner, both in law and in fact.

◦ Unclear Application: The Court did not provide a clear explanation for the first condition of the test, and it is challenging to find cases that have effectively applied this test.