The overarching issue in AlfaVita is that its application of Keckis unclear. This issue arises when the ECJ attempts to assess the boundarybetween rules that fall within the scope of the Keck exception, and those which fall outside the ‘certain sellingarrangements’ that benefit from a narrower application of Article 34. The rule concerning ‘certain selling arrangements’ has receiveda large wave of academic criticism since the judgement in Keck, including hostilecomments voiced by authors such as Mattera, Reich, and Stuyck based on thelack of clarity of what is to be understood by ‘certain selling arrangements.’ Indeed,Bernard has that ‘the introduction of ‘certain selling arrangements’ hasimposed an unnecessary straitjacket on the development of the Keck principle. Not only is the Keck formula too narrow…it is also toobroad in that it catches ‘dynamic’ measures (such as restrictions on advertising)and therefore takes them outside the scope of Article 28 even though they doaffect inter-state trade.1’It can be argued that the Court in Alfa,by still applying ‘certain selling arrangements’, has furthered the confusion concerningKeck as the ECJ in Alfa did not attempt to fully explainits application of Keck ‘sellingarrangements’, and only explained howKeck applied in one short paragraph.
It may be argued that the application of Keck in Alfa Vita isincorrect altogether – which may be exemplified through the dissonances incase-law regarding ‘selling arrangements.’ In Banchero, rules which limited the sale of tobacco to licencesretailers was found to be non-discriminatory selling arrangements. However, in Franzen, the requirement for a licencein order to sell alcoholic products was found to fall outside the Keck exception, and thus fell into theambit of Article 34. And yet, the rulesat issue in the two cases both concerned a licensing requirement whereby thesale of given products was reserved to authorised retailers. When comparing theoutcomes of these two cases to Alfa Vita,it should be argued that the ‘selling arrangement’ exception in Keck has not helped in clarifying thelaw surrounding MEQRs – but instead, has just added to the wide array ofcontrasting EU case law. Again,compare the rules at issue in the case of Morellato2with the rules at issue in Alfa Vita.In the former, rules concerning the packaging of bake-off products were foundto be selling arrangements.
However, as the requirement for packaging was bindingprior to sale – ‘shall be distributed and put on sale after it has been packaged and labelledwith the information provided for by the legislation (p.5) – it clearly did notrelate to a selling arrangement within the meaning of Keck, which stated that ‘packaging’ was a product rule. Looking back at Alfa Vita,rules restricting the sale of bread baked on the premises to stores whichcomplied with all the requirements prescribed for bread-making establishmentswere found not to be selling arrangements since they did not take intoconsideration the specific nature of bake-off products. In this respect, thereseems to be some confusion so that the assessment of the effect of the rule isrelevant in determining whether the rule is a certain selling arrangement.
In this way, the focus shifts back from assessing the ‘type’ of rule, toassessing its ‘effect’. Moreover, an issue that arises from Keck is that it is too formalistic. While the outcome ofthe cases above, and Alfa Vita, areinstinctively correct in terms of not preventing obstacles to inter-statetrade, the court’s judgements and reasoning were effectively shoehorned intothe Keck distinctions in a way notenvisaged in the initial articulation.
Agreeing with Bernard, van Gerven describes the distinction between ‘productrules’ and ‘selling arrangements’ as ‘too formalistic.3’. Many have criticised Keck in these terms – including Chalmers4– and ultimately claimed the distinctionbetween the rules to be overly formalistic, too little attention paid to theeffect of rules and too much to their form. This argument certainly has sometraction, although it perhaps neglects to appreciate the fact that thedistinctions in Alfa Vita, whileformal, are premised on conclusions concerning the effect of rules. Another issue with Alfa is that it does not help to clarifywhich case-law has been overruled. In this sense, itshould be argued that the application of Keckin Alfa did not help to clarify theexisting law. There has been a lot of academic criticism of the judgement in Keck – which has mainly come about as aresult of the case not expressly overruling any previous decisions. AsWeatherill stated, the ECJ had come ‘perilously close to overturning Keck.
‘ This has led to a considerabledegree of legal uncertainty in regard to precisely what measures will breachArticle 34. This legal uncertainty about what cases are still effective isapparent in Alfa Vita – with Steiner &Woods commenting that ‘Alfa Vita couldbe seen as evidence of a contraction of the selling arrangement exception foundin Keck.5’ The lack of clarity when applying Keck to cases such as Alfa has sparked suggestion of movingaway from Keck altogether. Some commentators now seem toprefer a simplistic market access approach in replacement of Keck. In Leclerc-Siplec, AGJacobs suggested that in all cases the test should be whether the measureconstituted a substantial barrier to market access. Apart from the fact thatthis would introduce a de minimis test into article 34, the “barrier to marketaccess” criterion is inherently nebulous.
Although, the fact remains that hewas unable to propose a more satisfactory test. Similarly, in Alfa Vita AG Maduro suggested that there willbe a MEQR if a national provision more severely restricts market access andmarketing of products from other Member States. Despite the force of this opinion, itis open to criticism. First, it arguably attached excessive importance to theidea of a unitary approach to the four freedoms. Second, while the opinionexpressed dissatisfaction with the case law as it stood, it failed to provide aclear test to replace it.
It should be argued that the ‘selling arrangement’ distinction isstill of use. Spaventa argued that ‘if we switch to a market access test… itbecomes more difficult to explain why some rules which clearly affect marketaccess…are caught only when discriminatory; whilst other rules which might havea lesser effect on market access, say an obligation to provide data forstatistics, would be caught by the Treaty regardless of discrimination.”Essentially, Spaventa argued that whilst the Court aims to provide somethingmore useful and easier to apply than Keck,the ‘selling arrangement’ distinction is still the best criteria the Court has.
Likewise, Snell hasargued that market access in reality falls under economic freedom oranti-protectionism and as a result creates more confusion than actuallyclarifying law. In contrast, Barnard has described ‘market access’ approach asbeing the “driving force behind the earlier caseson free movement of goods such as Dassonville.” 1 CatherineBarnard, The Substantive Law of the EU:The Four Freedoms (2nd edn, OUP 2007) 1492 C-416/00 Tommaso Morellato v Comune di Padova, ECLI:EU:C:2003:4753 Waltervan Gerven, The European Union:A Polity of States and Peoples (1stedn, Hart Publishing 2005) 148 4 DamianChalmers, ‘Repackaging the Internal Market – The Ramifications of The KeckJudgment’ (1994) 19 ELR5 Lorna Woods and Phillipa Watson, Steiner & Woods: EU Law (12thedn, OUP 2014) 339
