1.4.1. Non-Economic Interests

While the interests provided for by the Treaty are exhaustive, the interests recognised

by the Court are not. However, the Court has provided little guidance as to what

interests could potentially justify exceptions to the lreedoms as mandatory requirements

of the public interest. So far the Court has come to one, albeit negative, requirement

for what interests may qualify as mandatory requirements of the public interest.

The Court has consistently held that such interests must be of a 'non-economic'

nature. ' Admittedly, the line between what must be considered economic and noneconomic

i s not clear-cut. For instance the Court did not consider access to the French

labour market ' or the reputation of the Dutch financial market to be interests of

an economic nature. At the very least however, it would appear clear that a Member

State cannot 'rely on mandatory requirements in order to protect its domestic economy'.

words, rules of"private international law do not affect the marketing of domestic and

foreign products in the same manner.

This reasoning, however, threatens to become the opening of Pandora's Box. I f private

international law is not affected as such by Keck because the marketing ot domestic

and foreign products are not affected in the same manner, does this not have repercussions

for the availability of the 'rule of reason'? Advocate General Van Gerven indicated

this possible consequence. It Keck should be read as a reduction of the free

movement of goods to a prohibition on d i s c r i m i n a t i o n - r a t i o u c persouac or matenaein

respect of selling-arrangements, than measures 'caught by the prohibition (...) solely

on account of their discriminatory nature' would only be capable of being justified

on grounds exhaustively listed by 30 EG. 1

One could argue the issue to be of little relevance and point to the fact that case-law

indicates that nearly all measures 'applicable without distinction'still have some discriminatory

effect or, alternatively, to the exceptional cases where the Court allowed

discriminatory measures to be justified on grounds of mandatory requirements not

listed in Article 30 EC. 1 In any event, the Court itself has held that national measures

which do not fulfil the /CfcA-condition of an equal burden may still be justified under

the'rule of reason' at Cassis dc Dijon. In DeAgostinia prohibition on the broadcasting

of advertisements aimed at children of twelve years and younger was at issue. The

Court held this to be a selling arrangement, but left it to the national court to determine

whether it did in fact impose an equal burden. It the measure did not fulfil

that requirement, it was for the national court to determine whether the measure was

necessary ' to satisfy overriding requirements of general public importance or one ol

the aims listed in Article 36 | now Article 30] of t he EC Treaty'. 1 Consequently, where

a national rule concerning selling-arrangements is not caught by the fu'il-exception

because it affects domestic and foreign traders and products in a different manner,

S e c t i o n T w o . C o m m u n i t y L aw a n d C r o s s - B o r d e r I n s o l v e n c y R e g u l a t i on

The exclusion of economic interests from the interests which Member States may

invoke to justify measures resulting in obstacles to trade may set a significant limit in

respect of national private international law. A considerable share of mandatory rules

of law, the international scope of which is determined in accordance with the substantive

approach, is concerned with international economic law. In international economic

law it is typically the regulation and protection of the national market and

economy which determines the international reach of national law. 1