Leaving Keck behind? The free movement of goods after the rulings in Commission v Italy and Mickelsson and Roos

This article considers two recent judgments of the European Court of Justice in which rules severely restricting the use of products were found to be measures having equivalent effect to quantitative restrictions on market access grounds. It is not clear from the rulings whether the Keck selling arrangements doctrine has been consigned to the history books; yet, it is argued, in recent years the Keck exception has been applied so seldom that whether Keck is abandoned or not would make little practical difference. The Court’s open embracement of an unqualified market access test raises questions both as to the boundaries of Article 28 EC and to the theoretical basis which justifies a market access approach. As for the former, it is argued that it is not only restrictions to market access that are now caught by the Treaty but also restrictions to the market. As to the latter, the aims and priorities of the internal market have evolved to reflect also the need to ensure the competitiveness and efficiency of the 27 national markets as a whole.