Accentuating the Positive: The ‘Selling Arrangement’, The First Decade, and Beyond

2005 ◽  
Vol 54 (1) ◽  
pp. 127-160 ◽  
Author(s):  
Tim Connor
Keyword(s):  
European Community ◽  
Free Movement ◽  
Criminal Proceedings ◽  
Similar Treatment ◽  
Community Law ◽  
National Activity ◽  
Free Movement Of Goods ◽  
National Measure ◽  
European Community Law

The ‘selling arrangement’ is a judicial device which removes national law from thescrutiny of European Community law relating to the free movement of goods. National provisions affecting the marketing of products may fall for consideration as ‘selling arrangements’ where the treatment of the domestic and imported goods has been even handed. Measures relating to the substance of the goods remain subject to Community law rules on the free movement of goods. The prime example of the selling arrangement is the advertisement, but in the years since creation, other areas of national activity with respect to the free movement of goods have been enveloped inthe selling arrangement. Certain measures which have related to the conduct of business may also fall for similar treatment as selling arrangements. A recent development would appear tomean that the concept of the selling arrangement may apply where the obligation imposed by the national measure has beenidentified as being general, as opposed to specific in nature. Were this to be so, the selling arrangement would have the potential to break free of the traditional boundaries established for itunder Criminal Proceedings against Bernard Keck and Daniel Mithouard.1

Indirect Discrimination Law in the EC; Appearance Rather than Reality?

1996 ◽  
Vol 2 (1-2) ◽  
pp. 85-117 ◽  
Author(s):  
Martin Hedemann-Robinson
Keyword(s):  
European Community ◽  
Economic Consequences ◽  
Free Movement ◽  
Economic Sectors ◽  
Community Law ◽  
Unequal Treatment ◽  
European Court ◽  
Indirect Discrimination ◽  
And Gender ◽  
European Community Law

It would not be an overstatement to suggest that the principle of equality constitutes a cornerstone of European Community Law. The prohibition of discrimination on the basis of nationality, enshrined in Article 6 of the EC Treaty, is a theme that runs through Community Law. It has been central to the realization of SingleMarket dream, in eliminating inter-state barriers to develop greater free movement of the four key factors of production, namely goods, persons, services and capital within the Union. The European Court of Justice (ECJ) has even developed a general unwritten principle of equality, binding on all Community legislative action. However, beneath this appearance of uniformity of approach there lies, paradoxically, a marked difference in relation to the prohibition of hidden forms of unequal treatment (or indirect discrimination) in EC Law. Here, the ECJ has been unable to sustain the unifying quality of the equality principle. It has singularly failed to establish a comprehensive legal test relating to the concept of indirect discrimination. Instead, the case law has diverged considerably, the ECJ apparently willing to develop principles on a sectoral as opposed to a generic basis. This paper aims to analyse and expose the inconsistency of treatment by the ECJ in its appraisal of indirect discrimination in relation to the following key economic sectors: free movement of goods, services and workers and gender equality in employment. Behind the presentation of uniformity of approach, the ECJ has established subtle but significant legal distinctions which have had profound economic consequences for litigants and markets alike. Such a state of affairs raises serious questions about the universality and impartiality of the application of the principle of equality in the European Community Law context, not least because hidden as opposed to more express forms of discrimination tend now to take on a more prevalent and signification role in the Single Market.

II. Free Movement of Goods

1997 ◽  
Vol 46 (3) ◽  
pp. 704-712 ◽  
Author(s):  
Karl Newman ◽  
Stephen Weatherill
Keyword(s):  
United Kingdom ◽  
Marketing Strategy ◽  
Market Integration ◽  
High Water ◽  
Free Movement ◽  
Integrated Marketing ◽  
Criminal Proceedings ◽  
Community Law ◽  
The United Kingdom ◽  
Free Movement Of Goods

1. From “Sunday trading” to Keck and MithouardThese Current Developments surveys have consistently been driven to consideration of the Court's attempts to fix the outer limits of Article 30 of the EC Treaty, beyond which national authorities remain exclusively competent to regulate their markets without fear of legal challenge based on Community rules governing the free movement of goods. The high-water mark of judicial interventionism came in the so-called “Sunday trading” cases where the United Kingdom was required to justify against standards recognised by Community law rules governing shop opening hours despite the fact that such rules, although inhibitive of commercial freedom, posed no demonstrable obstacle to the construction of an integrated marketing strategy for the whole territory of the Community.1 In Criminal Proceedings against Keck and Mithouard2 the Court sought to curtail the reach of Article 30. A French rule prohibiting resale at a loss was held unaffected by Article 30. The Court overruled previous decisions, probably including the pair dealing with Sunday trading, although the Court was not explicit. Its intention to refocus the law of the free movement of goods on measures hostile to market integration, rather than those merely oppressive of commercial freedom, was reflected in the formula:

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