C-412/93, Leclerc-Siplec

Key Points to Note in This Case

• Issue: A prohibition on TV advertising by fuel distributors.
• Outcome: This was deemed a selling arrangement and fell outside the scope of Article 34 TFEU.

• AG Jacobs’ Criticism:

◦ Rigid Distinctions: Advocate General Jacobs criticised the rigid distinctions made by the Court. He argued that the severity of restrictions is a matter of degree and suggested introducing a 'barrier to market access' test.

◦ Implications: This test would consider whether a measure constitutes a substantial barrier to market access. However, Jacobs’ suggestion risked reintroducing the de minimis rule and was seen as a restatement of the Dassonville formula, which is inherently uncertain.

• Alfa Vita, AG Maduro’s Criticism:

◦ Proposed Changes: Advocate General Maduro proposed modifications to the Keck principles while maintaining the distinction between product requirements and selling arrangements.

◦ Criteria:

1. Discrimination based on nationality should be prohibited.

2. Additional costs due to discrepancies in Member State legislation should not amount to a violation.

3. Market access should be considered.

◦ Counter: There was concern about placing excessive importance on a unitary approach and the need to balance this with other freedoms, cautioning against abandoning principles solely for harmonisation.