Milestones on the Road to Keck (p51-68)

Summary: The article traces the roots of the ECJ’s famous Dassonville formula back to similar concepts under competition law and questions its direct importation into Art 28 EC as done by the Court. From this starting point, the case law to Keck and beyond is analysed with a
view to track the attempts to limit the scope of Art 28 and the role of the proportionality principle in this respect. The conclusion is that Keck did at least constitute the right approach, limiting the scope of
(rather than adding another justification dimension to) Art 28, even though it still failed to answer the crucial question as to what constitutes a measure of equivalent effect to quantitative restrictions in a general manner. The partial success thus achieved has at least enabled
the ECJ to leave the proportionality test of individual measures of the Member States to the proper venue - the referring courts of the Member States.