1.3.4. Keck and Private International Law

So tar an unqualified reading of the Court's ruling in Dassonvilk has been the startingpoint

of analysis: 'all measures capable of hindering intra-Community trade' are prohibited

unless they are justified by overriding public interests. In particular, no account

has been taken of the Court's judgment in Keck and Mithouard."' In its judgment in

Keck the Court introduced a distinction between national rules concerning product

requirements and those prohibiting or restricting'certain selling-arrangements'. With

respect to this latter category the Court held that 'contrary to what has previously been

decided' those rules fall outside the scope of Article 28 F.C provided that they 'apply

to all traders operating within the national territory and provided that they affect in

the same manner in law and in fact, the marketing of domestic products and of those

of other Member States."

Keck has produced a wealth of literature, which does not need to be reproduced here."

What should be pointed out, however, is that the ramifications of the Keck judgment

for the control of Community law over national private international law are limited. '"

This is first of all due to the fact that the exception introduced in Keck appears to be

particular to the free movement of goods and Article 28 F.C. At least the Court has not

extended its ruling to any of the other economic freedoms, though it arguably had

ample opportunity to do so.'" Also in respect of Article 28 F.C, the implications of Keck

should not be overstated. The judgment has not affected the effects based approach

ot Dnssonvillc. Also after Keck it is not the form of a national measure but the effects

ot its application that matters under Article 28 FC."

The distinction the Court draws between rules relating to product requirements and

selling arrangements is therefore ot limited consequence. Rules relating to product

requirements are 'by nature such to hinder intra-Community trade'.' They force

foreign products to comply with two sets of regulations and therefore do not affect

domestic and foreign products alike. Consequently, also where selling-arrangements

form an integral part of the product itself (packaging; puzzles in magazines), rules

relating to those selling-arrangements are treated on the same footing.' Otherwise,

rules prohibiting or restricting certain selling arrangements, even if indistinctly

applicable, may or may not hinder interstate trade, depending on whether they 'attect

in the same manner in law and in fact, the marketing of domestic products and ot

those of other Member States'."' Thus the Court's p r e -Keck cases of Huct, GB-INNOHM,

()o<thock i\nd Yves Rochcr, in which national rules relating to selling arrangements

resulted in obstacles to trade as they prevented foreign traders from formulating a

uniform marketing strategy and from benefiting from economies of scale, would not

now escape the prohibition ot Article 28 FC." The application of such rules did not

and still does not affect the marketing of domestic and foreign products in the same

manner.'" Conversely, the measures at issue in Keck and its follow ups Hi'mermund

and Taiikstntioii 7 Heukske" fell outside Article 28 FC, not because they were sellingarrangements

applying equally in law and in fact, but because they were equally

applicable measures not impeding market-access nor obstructing the realisation ot

economies ot scale and wider consumer choice in an integrating market.""

If Keck has not overturned the effects-based approach of Dossimville, the implications

for Community law's control over national private international law remain limited.'1 ''

To exclude a national measure by virtue ot Keck, it must be established that a measure

prohibiting or restricting a selling-arrangement imposes an equal burden on the marketing

of domestic and foreign products. As Von Wilmowsky correctly points out,

this condition will rarely, if ever, be fulfilled in respect of rules of private international

law. " L'nlike cross-border transactions, the marketing of domestic products by domestic

traders is not confronted by the additional costs of conflicts of law. In other

the national measure may still be justified on the grounds of overriding interests other

than those expressly provided for in the EC Treatv.