The Visnapuu Case: The Narrow Interpretation of Article 37 TFEU and the Consequent Failure in the Application of the ‘Certain Selling Arrangements’ Doctrine: European Court of Justice, Fifth Chamber, 12 November 2015, C-198/2014, Valev Visnapuu v. Kihlakunnansyyttäjä, Suomen valtio – Tullihallitus

Abstract:

In Visnapuu the Court of Justice held, inter alia, that a Finnish measure governing the exceptions to the monopolist’s exclusive rights was separable from the operation of the monopoly. Therefore, the Court assessed it in the light of Article 34 Treaty on the Functioning of the European Union (TFEU) instead of Article 37 TFEU. It is worth noticing the remarkably narrow interpretation of Article 37 TFEU and its consequences on the application of Article 34 TFEU where a monopoly is at stake. In particular, in such circumstances, some concerns arise with respect to the suitability of the paragraph 16 proviso of Keck.