The outer limit of the treaty free movement provisions: some reflections on the significance of keck, remoteness and deliège

In writing a piece on the outer boundaries of the free movement provisions, it is inevitable to be forced to revisit very familiar concepts and case law. This investigation has led to findings that the present author had not anticipated: naively, one could have thought that the outer boundaries of the free movement of goods were a settled affair with the exception of the relationship between the doctrine of ‘effect too uncertain and indirect’ and the Keck selling arrangements. After all, the Keck ruling, for all its faults, helped both commentators and national courts to determine when a rule would fall within Article 28 EC: a product requirement is always caught while rules regulating the modalities of sale would in principle, and lacking discrimination, fall outside the scope of that provision. And yet, as noted by Koutrakos, as different situations presented themselves, the Court was forced to ‘fine-tune’ its approach and more rules have been brought back within the reach of Article 28 EC. On closer scrutiny, this fine-tuning might lead to the conclusion that the effect of the Keck ruling has been more limited and less revolutionary than anticipated, and consequently the boundaries of the free movement of goods less defined than one might have thought. On the other hand, one could have thought that the definition of the outer boundaries of the free movement of persons provisions might be more difficult: it is sufficient to recall the Carpenter ruling as a reminder of the breadth of these provisions. And yet, exactly because no attempt has so far been made to explicitly exclude a given type of rules from the scope of these provisions, the case law on the free movement of persons appears more internally consistent (which of course does not mean that is not hermeneutically problematic). Thus, almost all rules are caught by the free movement of persons provisions and once we accept the ‘discouragement’ test as a starting point this should not come as a surprise. There are only a handful of cases in which the Court excluded the relevance of the Treaty in cases concerning the free movement of persons and, by and large, in those cases the claimants were pushing the dicta of the Court beyond reasonable limits. This said, the discouragement test seems to find its physiological limits in relation to tax rules. Higher taxation in another Member State might clearly deter an economic operator from exercising its Treaty rights; and yet, the Court has so far (rightly) resisted the temptation to subject the level of taxation to the proportionality assessment required once a rule is found to fall within the scope of the Treaty free movement provisions. This contribution will analyse these issues; it will start by introducing the reader to alternative conceptual backgrounds to the Keck ruling. It will then turn to a scrutiny of the doctrine of ‘effect too uncertain and indirect’; and the case law on selling arrangements. In this respect, it will highlight how the ‘refinement’ of the Court’s approach might signal a change in the very nature of the Keck presumption. It will then conclude with a brief analysis of the free movement of persons provisions, focusing on the different approach adopted in relation to tax rules.