Can selling arrangements be harmonised?

Abstract:

If interpretations of Art.28 also limit permissible harmonisation under Art.95, many Directives, including most of those dealing with consumer law, are probably ultra vires. They concern selling arrangements which, since Keck, are not obstacles to movement. However, positive harmonisation is not a mere reflection of negative harmonisation. It has a broader remit, because the Treaty makes clear that the internal market is to be a market which respects non-trade values. Therefore, internal market harmonisation should not be confined to measures assisting trade, so long as it addresses problems which have arisen as a result of trade, and which only the Community can solve. This has been implicitly affirmed by the inclusion of harmonisation of the conditions of competition within Art.95. This article makes the argument above, and looks at continuing ambiguities concerning the relationship between positive and negative harmonisation, in the case law of the Court and in the proposed constitution.