Does Keck discrimination make any sense? An assessment of the non-discrimination principle within the European Single Market
The aim of this paper is to consider the approach taken by the European Court to discrimination in the post-Keck lines of cases. The previous Article 28 jurisprudence had not considered discrimination in any detail. Thus the Dassonville/Cassis case law had deliberately shunned GATT-style anti-protectionist methods in favor of a more dynamic attack on barriers to trade. However introducing discrimination analysis in Keck has presented problems as the Court has had to work out what kind of methodology to employ. The paper seeks to set out a general framework for understanding discrimination in EC internal market law more broadly. Discrimination involves treating similar situations differently. The framework consists of three types of similar situations that have been employed in the internal market case-law. These are termed market, regulatory and status equivalence. The post-Keck case-law is analyzed in this context. It is concluded that the Court has failed to employ any coherent discrimination methods in to non-product rules. It has failed to set out well-defined product markets where domestic and foreign products compete. It has also failed to establish disparate impact in these markets using convincing methods. Instead it has found ‘discrimination’ based upon judicial hunches or intuitions rather than clear criteria and objective evidence about conditions of competition in the product markets. This has caused litigation to become unpredictable and has left both the European and national courts without any clear criteria for scrutinizing non-product rules. This is reminiscent of the problems that arose in the pre-Keck case-law but now the site of uncertainty is what constitutes ‘discrimination’ rather than what amounts to a barrier to trade. In fact, the case-law exhibits a judicial sleight-of-hand which continues to lean towards the favored ‘barriers to trade’ test under the guise of discrimination analysis. It would be better either to adopt a precise GATT-style economic methodology or to find a coherent European alternative approach. This author favors the latter because the proper concern of EU internal market law since Dassonville has always been the removal of demonstrably arbitrary barriers to trade. Only where a trader can establish that a restriction is truly arbitrary should Article 28 bite. For many non-product rules this will rightly be very difficult to do because such rules pursue broad policy goals that are largely non-justiciable.
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