CASE LAW: Joined Cases C-267 and C-268/91, Criminal Proceedings Against Bernard Keck and Daniel Mithouard, November 24, 1993. Free Movement of Goods; Scope of Article 30 EC Treaty; Reversal of Prior Case Law

1 Colum. J. Eur. L. 120 (1994)

Jan Vanhamme. Researcher, Institute for European Law, Catholic University, Leuven, Belgium.

Frenchmen Bernard Keck and Daniel Mithouard had broken French law by reselling products at prices lower than their purchase price. When prosecuted before the Tribunal de Grande Instance of Strasbourg, they invoked Community law in their defense. More specifically, they argued that the French prohibition on resale at a loss was contrary to the articles of the EC Treaty relating to free movement of goods, services and capital, free competition and non-discrimination, and should be considered unenforceable. In order to know whether these Treaty articles required dismissal of the charges, the Tribunal de Grande Instance referred Keck’s and Mithouard’s argument to the European Court of Justice in the form of a preliminary question.

The Court easily found that resale at a loss has nothing to do with services and capital, at least not within the meaning of the Treaty. It also found that competition law was not the appropriate angle for examining the case either. The Court concluded that resale at a loss had to be looked at from the perspective of the free movement of goods. The question thus became whether the French prohibition on resale at a loss – a prohibition that admittedly did not discriminate between nationals of different Member States-should be considered as a measure having equivalent effect to a quantitative restriction on imports from other Member States, within the meaning of the prohibition contained in Article 30 of the EC Treaty.