Accentuating the Positive: The ‘Selling Arrangement’, The First Decade, and Beyond

Abstract

The ‘selling arrangement’ is a judicial device which removes national law from thescrutiny of European Community law relating to the free movement of goods. National provisions affecting the marketing of products may fall for consideration as ‘selling arrangements’ where the treatment of the domestic and imported goods has been even handed. Measures relating to the substance of the goods remain subject to Community law rules on the free movement of goods. The prime example of the selling arrangement is the advertisement, but in the years since creation, other areas of national activity with respect to the free movement of goods have been enveloped inthe selling arrangement. Certain measures which have related to the conduct of business may also fall for similar treatment as selling arrangements. A recent development would appear tomean that the concept of the selling arrangement may apply where the obligation imposed by the national measure has beenidentified as being general, as opposed to specific in nature. Were this to be so, the selling arrangement would have the potential to break free of the traditional boundaries established for itunder Criminal Proceedings against Bernard Keck and Daniel Mithouard.1