A Recap 30 Years after Keck: Unbridgeable Differences or Recurring Tales in EU Market Jurisprudence?

Abstract

More than 30 years ago, the European Court of Justice (“ECJ” or “Court”) adopted its famous decision in Keck. While the debate about the state of market jurisprudence has not caught much attention in recent years, discrepancies between Keck and subsequent case law, particularly the so-called market access test as arguably most prominently fleshed out by the ECJ in its 2009 judgment in Italian Trailers, remain. Both strands of case law have been subject to criticism (notwithstanding proponents on each side, of course). Put oversimplistically, it has been argued that Keck needs to be abandoned or its scope of application expanded, while Italian Trailers has been welcomed or criticised for over-expanding the notion of what constitutes a restriction of the free movement of goods rules, lacking contours, a nuanced legal test, and conferring vast supervisory power to the ECJ over national law. While acknowledging the advantages of both strands of case law, this article proposes a unified legal test that converges the two. In light of the restriction-justification approach that, as will be shown, currently predominates the free movement case law of the ECJ (while Keck has lost importance and even been applied inconclusively) this seems necessary to eliminate the arbitrariness inherent to the latter approach. Moreover, this approach would arguably render decisional outcomes more comprehensible and thus, from the perspective of a federal, multilevel political system with its shared competences, merit traceability and increased acceptance.