Of types and tests: towards a unitary doctrinal framework for article 34 TFEU?

Abstract

What market model should determine the boundaries of negative integration, and in particular: what test should the Court apply to art.34 TFEU? After Keck , there is no single answer to this question. Having expressly acknowledged the existence of different tests for different types of measures, the post- Keck Court develops three jurisprudential lines that follow three different market models.

While confining measures regulating selling arrangements to an international model, the Court also confirms the parameters of the Cassis model for product requirements; and, with Italian Trailers , it cultivates a third jurisprudential line on consumer-use restrictions that comes close to a national market model. It is in the context of this third line that the Court elevates the market access principle to centre stage; and it is this development that has prompted the question how the three jurisprudential lines relate to each other.

Have they remained separate—parallel—lines; or have they converged in a single doctrinal framework that generally applies to all measures falling within art.34? In Ker-Optika and its progeny, the Court appears to rhetorically combine all three lines in a unitary framework; yet various ambivalences within this doctrinal solution have remained. This article explores the possibilities for a doctrinal framework and charts the unstable post- Keck jurisprudence on art.34 TFEU in light of such an unitary framework.

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