Essay: Market access – Dassonville and Keck

For it to be shown that it was necessary for the Court of Justice of the European Union (CJEU) to develop a self-standing “market access” test, it must have been impossible to comfortably apply Keck or Dassonville and “market access” must be a better test than the aforementioned. In creating this “market access” test the court created a 4th test in free movement of goods cases. This has been derided by many as overcomplicating, rather than simplifying the matter. Indeed, it will be shown that the “market access” test was unnecessary and, in fact, does more harm than good. First Dassonville will be shown to be the natural and best test in use cases and it will then be shown that even if Dassonville should be rejected then keck would have been better than “market access”. First, however, it must be noted that the premise of the question, namely that this test is self-standing, is not unassailable. Indeed, Spaventa and Lianos convincingly argue that “market access” has become the leading test for all measure having equivalent effect (MEE) cases on the basis of the recent shift in jurisprudence away from even mentioning the Keck criteria in selling arrangement cases or the Dassonville test in ‘standard’ cases and toward looking merely at the measure’s effect on market access as evidenced by cases such as Commission v Spain. Nevertheless, assuming the test to be self-standing as part of the broader 4 test framework, it will be shown that it was unnecessary to create this 4th test.
Dassonville
Dassonville, a test that covers what is perhaps best described as the residual category, is the obvious test for cases that do not fall under any pre-existing category, as was the case before Italian Trailers for use cases. Therefore, the viability of Dassonville with regard to use cases will be examined first. Dassonville states that MEEs are “All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”. The primary argument against the application of Dassonville to use cases was advanced by kokott in her opinion in Mickelsson and Roos and Bot in Italian Trailers, namely, that this test is so broad that any measure restricting use has to be justified. Indeed, this was the same reason for the development of the Keck test in selling arrangement cases, excluding certain selling arrangements (CSAs) from review. However, it is unclear what normative justification there is for treating use regulations differently to the ‘standard’ regulatory situations that Dassonville covers. In the case of CSAs, the justification lies in the fact that because virtually every regulation is capable of increasing costs and therefore prices, the law of supply and demand dictates that higher prices lead to less consumption and therefore trade in that product, meaning that virtually every regulation has to be justified. This lead to a culture of challenging any regulation even if it affected domestic products and foreign products equally. The sunday trading cases illuminated this and therefore selling arrangements, of which Sunday trading hours were part, became subject to a non-discrimination test before it could be examined under Article 34. The justification in Keck thus lay in the view that it was never the intent of the signatories to force member states to prove that every selling arrangement was proportionate and justified since they have an indirect and limited effect on free movement. Kokott submits that one could extend this reasoning to use cases on the basis that they are demand-side, having only an indirect effect on trade, and, as a class, they according to Kokott have a limited effect on the free movement of goods. This view is however unconvincing because the effects of such restrictions can be just as major as a quota or import ban. A normal quantitative restriction would ban or limit the import of a certain product, whereas the normal use restriction would ban or limit the use of a certain product. As reasoned in Italian Trailers banning the use of a product means that there is no value in buying that product and this must therefore be an example of the very cases that MEEs were supposed to cover. Further, contrary to the supposition of Kokott the intensity of the effect on trade can potentially be major if there is a total ban on the use of a product since this will feed through to no imports since there is no value in buying an unusable product. Therefore, the justification advanced in Keck for veering away from Dassonville in some situation does not hold in use cases. Accordingly, there is no normative justification for treating use cases differently (whether by applying keck or, pertinent to this question, developing a new test) from the standard MEE situation covered by Dassonville.
Dassonville, of course, is a much-derided test because of its breadth. One could therefore posit that whilst there is no normative justification for treating use cases differently to the ‘standard situation’, it is justified to differentiate any case by creating a new category so as to keep more cases outside the purview of Dassonville. Thus, the argument goes, we should applaud the introduction of the “market access” test for use cases. However, for this view to be convincing, the “market access” test must be a better test. This is not the case. Spaventa goes so far as to argue that the market access test is a mere reformulation of Dassonville. There is some credence to this argument. Dassonville asks whether a measure hinders intra-community trade, Italian Trailers asks whether a measure restricts the access of traders from other member states to the domestic market. Italian Trailers is merely Dassonville phrased from the point of view of the individual trader. To hinder intra-community trade is to restrict access of foreign traders to the market. Thus, if one objects to Dassonville’s application on the basis of breadth, then one must be aware that “market access” is no better. It will now be shown that not only is it no better, it is in fact worse. Whilst many charges can be levied against Dassonville, it is at least clear in terms of content, importance and justification. Snell has convincingly shown that this is not the case with “market access”. The term does not tell us whether to look only at direct effects or whether indirect effects should also be examined. It further leaves the question of whether one should look for discriminatory effects or any trade volume reducing effect and whether it affects domestic producers equally or not, unanswered. As Snell argued it therefore seems that “market access” is merely a slogan behind which economic freedom can hide. Thus, rather than being a better measure than Dassonville, “market access” is at best a reformulation and at worst a less clear reformulation. Thus, it was unnecessary and in fact counterproductive for the court to develop a self-standing “market access” test.
In response to the argument that Dassonville should not have been applied in Italian Trailers because it would lead to a bad outcome it is worth examining AG Leger’s opinion. Leger applies Dassonville to the facts and finds that the ban on using trailers with a moped is an MEE. He then goes onto examine whether the measure is justified and proportionate. This latter analysis forms the bulk of his opinion. This is important because whilst he ultimately concluded that the regulation was unjustified, it shows that academic argument on MEEs is perhaps overly fixated on the restriction part of the analysis and ignores the fact that even if a measure is a restriction, it doesn’t necessarily have to be struck down, merely justified. The justification and proportionality side of the analysis is also usually quite deferential. There are quite broad treaty justifications and the open-ended mandatory justification category. Further, the issue of proportionality is often referred back to the domestic court. Therefore, the argument that the CJEU needs to develop detailed case law with many different bespoke tests is unconvincing because it fails to look at free movement of goods holistically.
Keck
Should one be unconvinced that the existence of Dassonville renders the ‘new’ “market access” test unnecessary then it will be shown that even keck could have covered use cases comfortably. The Keck test seeks to ascertain whether a selling arrangement should be categorised as one of the selling arrangements, the “certain selling arrangements”, that should be excluded from review under Article 34. In order to categorise selling arrangements, Keck asks whether the arrangement applies to “all relevant traders” and whether it affects in the “same manner, in law and in fact” domestic and imported products. It is thus a discrimination test. Kokott reasoned in Mickelsson and Roos that the reasoning in keck that led to the exclusion of certain selling arrangements from review should be extended by analogy to certain use arrangements, the use arrangements that are non-discriminatory. This view is somewhat convincing in that it is at least better than creating a new “market access” test. Earlier it was shown that there is not the same normative justification for categorising use cases as special as there were for selling arrangement cases. It would thus be disingenuous to argue the opposite now. However, it would still have been a jurisprudentially and pragmatically more secure decision for the court to make than create a new and unclear test. Jurisprudentially, there is at least an argument to make for the view that like selling arrangements, use arrangements should not always need to be justified because they are necessary for the functioning of society and it cannot have been the intent of the drafters to force national legislators to second guess innocuous restrictions on how products are used. Whilst this view is on the whole unconvincing because if a measure is indeed innocuous then there should be no problem in justifying it on the grounds the treaty provides for, it is still better than the justification for “market access”. This is because the “market access” test appears to have no reason to exist independently of Dassonville, a similar but clearer test. Pragmatically also, Keck would have been a better option than “market access”. The latter is as previously shown merely a slogan that is uncertain in application. This means that far more test cases will be launched than under the well-defined tests such as Dassonville and Keck and businesses and member states will be less able to plan ahead.
Bot in his opinion in Italian Trailers makes the argument that the effect of keck, excluding a class of free movement cases from review, is so poorly reasoned in that it creates holes in the free market, that rather than expanding its scope, it should be confined. Thus, he argues we should create the new “market access” test for use case so that Keck does not pollute more law. This argument is poorly reasoned. If we accept Bot’s view that Keck runs against the tide of free movement law that is moving toward greater integration, then this still fails to explain why a new formulation had to be created rather than the natural option of reverting to Dassonville. Whilst Bot did advance arguments against Dassonville these have previously been disposed of above. Thus, the argument that keck could not have been comfortably applied and we therefore needed a new test is unconvincing.
Conclusion
The self-standing “market access” test has muddied the waters of free movement of goods law. It has added a fourth test in an already overcomplicated area of law and it did so unnecessarily. Dassonville would have been the natural test to apply. It has the same characteristics as the “market access” test the court ultimately chose, but not its drawbacks: uncertainty about its meaning and scope. If one should reject the proposition that Dassonville could have been comfortably applied to use cases, then it has also been shown that Keck would still be better than the “market access” test because whilst use cases do not naturally fall under Keck it is at least a clearer test. Thus, the development of the market access test was unnecessary.