Keck & Beyond - Lecture 8 Review: Keck & Mithouard (Case c - 267/91) Criminal proceedings against K&M charged with resale at a loss of products in contravention of French law Defence-the law contravenes Article 34 TFEU Issue-resale at a loss only impacts resellers as manufacturers or improvers can sell at less than cost Legislation applies to any sales activity in France-regardless of nationality of those engaged in it Court looks to wording of Article 34 TFEU and the Dawsonville formula Para 12 "National legislation imposing a general prohibition on resale at a loss is not designed to regulate trade in goods between MSs) Case 254/98 Heidienst Austrian rule which provided that Bakers/ butchers may not make sales from vans in a given district unless they also sell at a permanent shop located in that district or an adjacent municipality selling same goods Heimdienst has drivers which deliver frozen goods to consumers Court refers to Dassonville formula and then Keck and notes that the legislation is not product requirement but a mode of selling However the rule does not affect in the same manner the marketing of domestic products and products from other MS. WHY ?? Heavier burden in fact even though same in law Austria tries to justify to protect the supply of goods at short distance to the advantage of local businesses Court-says aims of purely economic nature cannot justify a barrier to FMG (See Decker C 120/95) Also disproportionate Just require refrigerated vans Case c - 391/92 Comm v Greece Greece required processed baby milk to be only sold in pharmacies
Commission argued MEE not Keck Greece argued Keck not MEE Court: cites Art 30; Dassonville formula; intent of legislation is not designed to regulate trade in goods between MSs but does restrict volume of sales of the product from other MS Is measure a MEE? Cites Keck-states that Keck rules are met. Thus selling arrangement which is universal and neutral Thus outside Art 34 TFEU Case C - 244/06 Dynamic Medien Lawsuit by DM against AM-AM sells video and audio media by mail order via the internet DM competes with AM and tried to stop AM from selling over the internet arguing that German law prohibits sale of such items via the internet which have not been examined in Germany by a competent authority/marked with age limit label -- in order to protect young people AM argues rules are MEE prohibited by Art 34 DM argues Selling arrangement under Keck and not discriminatory so outside Art 34 Court acknowledges prior case law-Dassonville, Cassis, Familiapress; Hunermund and Keck, Commission v Greece. Court decides rule here is not a selling arrangement within meaning of Keck The rules do not prohibit sale by internet of DVDs but make them subject to national examination and classification regardless of whether similar procedure has occurred in the other MS. Such rules are liable to make the importation of image storage media from a MS other than Germany more difficult and expensive Thus