The Free Circulation of Goods: The Keck and Mithouard Decision and the New Directions in the Case Law

1 Colum. J. Eur. L. 436 (1995)

René Joliet. Late Professeur Extraordinaire at the Université de Liège and Judge at the Court of Justice of the European Communities.


René Joliet, Judge at the European Court of Justice, died on July 15, 1995, at the age of 57 years. Judge Joliet, a 1960 graduate in law of the University of Liège, conducted advanced research in economics and trade regulation in both Germany and the United States. He earned from the Northwestern University in Chicago both the Master’s Degree in Law (1966) and a doctorate in Juridical Science (1968). From 1974, René Joliet was a Professor at the University of Liège, teaching European Institutional Law, European Competition Law and Intellectual Property Law. In the intervening years, he also taught as visiting professor at various universities, including Nancy, Amsterdam, King’s College (London), and Northwestern. Judge Joliet was a member of the Curatorium of the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law.

In 1984, at the age of 46, René Joliet became a judge at the European Court of Justice. Even then, deeply attached to his students, he chose to continue his academic alongside his new judicial functions. As a judge, René Joliet by all accounts left a deep impression on the Court and its case law. Although the Court’s procedural rules do not allow dissenting or concurring opinions, one gathers from the available information that he played a very important role in the jurisprudence of the Court. Known for his outstanding analytical skills and persuasive reasoning, Judge Joliet was fond of precision, conciseness, and rigor of legal thought. At the same time, he was hostile to abstract theory, aspiring to keep law as close as possible to social reality. Avowedly supportive of Europe’s legal integration through the Community institutions, Judge Joliet was nevertheless committed to a proper separation of powers not only among the institutions, but also between the institutions and the Member States. The following commentary on the evolution of the Court’s case law on the principle of the free movement of goods aptly illustrates his important doctrinal contribution to Community law.

— Florence Melchior, LL.M. Candidate 1996, Columbia University School of Law. Ms. Melchior is an Assistant at the University of Liège, Institute of European Law Studies and worked with Judge Joliet. Ms. Melchior, under Professor George Bermann’s supervision, has translated this article from French.


Two supermarket managers in the Strasbourg region, Messieurs Keck and Mithouard, were prosecuted for having sold Picon beer and Sati coffee at a price lower than the effective purchase price of those products. At trial, the two managers advanced the defense that the French law prohibiting such sales violated the European Community’s rules on the free movement of goods and, more specifically, Article 30 of the EC Treaty. This provision prohibits, in the Community’s jargon, “measures having an effect equivalent to quantitative restrictions.” This is the scenario which, on a preliminary question from the Court of First Instance of Strasbourg, gave the Court of Justice an opportunity to both clarify and modify its case law on Article 30.

This article deals with the Keck and Mithouard decision, not because changes in the case law of the Court are especially rare (in my ten years in office I have seen only four cases in which the Court openly stated that intention), or because this case is somehow spectacular. Article 30 is simply among the provisions most frequently invoked before the national courts. It seems to have become, not unlike the due process clause of the European Convention of Human Rights, the last refuge for litigants in distress. There are several hundred decisions on Article 30. The case law is not only plentiful; it is overgrown. While the Court has rarely been reprimanded on the outcome of a particular case, one Advocate-General had occasion in his conclusions in the Hifnermund case to echo a common criticism of this case law. Mr. Tesauro wrote that the jurisprudence of the Court was “certainly not . . . one easily and systematically interpreted,” and he pointed out the inconsistencies, even contradictions, in the reasoning that the Court has followed. Since the Keck and Mithouard decision was an attempt to bring order to the case law and to place some limits on Article 30’s application, it is not surprising that scholars have paid it great attention. In fact, debate over the decision has exceeded what one might have anticipated. No fewer than thirty-eight articles have already been devoted to it,’ and it is difficult to find harmony in what could be called the “doctrinal cacophony.” What is the reach of this decision? To what extent does it represent a reversal of the case law? What are the reasons for the change? These seem to me to be the main questions and the ones that most deserve addressing.

The first thing to be noted about the French law in question in the Keck and Mithouard case –    a law prohibiting merchants from selling goods at a loss – is that it does not draw a distinction between domestic and imported products. It is an economic regulation which may be classified as dealing with unfair competition, and which is applicable to any person engaged in retail activities on French territory. The case thus entails, to use a term of the Court’s case law, a measure “indistinctly applicable” to imported and national products alike. Keck and Mithouard thus brings no change to body of cases on national measures dealing specifically with goods imported from other Member States, such as a public procurement law which gives preference to domestic products, or, more generally, measures subjecting the sale of imported goods to requirements not imposed on the sale of domestic products. Moreover, Keck and Mithouard does not change the law governing trade restrictions based on exclusive intellectual property rights (trademark, patent, copyright). Rather, as we will see, the change in the Court’s case law is mostly relevant to the legal rules governing unfair competition.

To determine exactly where the case law brings us, we must know from where we have come. I will therefore first recall the Cassis de Dijon decision,the key case on indistinctly applicable measures. This discussion thus has two parts: where are we coming from and where are we now heading?