European Law

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  1. The EC law group met to discuss whether the case law on Keck still made sense, if it ever had. Keck has always left a number of questions open, the most obvious one of which is what falls in the 'selling arrangement exception'? There are two aspects to this:-
    1. what might in principle get the benefit; and
    2. what falls out again through the operation of the 'in law and in fact' proviso?
    If we look at (1) the obvious question is, 'what is a selling arrangement', together with the linked questions of 'has the ECJ been consistent' and 'where does is draw the line/what analytical tools are used'?

    Much ink has been spilt particularly on the last question. The Advocate-General in C-158 & 159/04 Alfa Vita identified some of the issues in a bid to try to develop some coherence. A very interesting opinion, but does he get the answer right? Not, in the opinion of some of the members of the EC group! The analysis in that case put what were effectively planning rules in to the product requirement category, raising questions about whether health and safety rules could now be considered product requirements. Part of the problem here seems to be a world view which suggests that post-Keck measures must be seen as either a product requirement or a selling arrangement and – as some academics have noted – this is not necessarily the case. This then brings us to the question of how do we treat such other rules and are there classes of rule analogous to selling arrangements. In this context, the Opinion of the Advocate-General in C-142/05 Aklagaren v. Percy Mickelsson and Joakim Roos, which concerns a restriction on the use of a product, is interesting. Although the opinion dates from a couple of years back, it has not been decided. Note para 42 et seq on the reasoning of the Advocate-General regarding the possible application of the Keck principles to rules relating to use. While the Advocate-General went to some length to determine if such rules were similar to selling arrangements in terms of their relationship with the market, the ECJ in a couple of other cases (C-265/06 Commission v. Portugal on tinted window film; and C-110/05 Commission v. Italy regarding the use of trailers) assumed that they were contrary to Article 28 and then went on to consider justification. Whilst prohibitions on products may well have an impact on those goods' marketing, do all rules affecting use (a smoking ban in public spaces, for example) have a similar effect?

  2. The most important discrimination cases that have recently come before the Court concern Directive 2000/78/EC which prohibits discrimination on the basis of religion or belief, disability, age or sexual orientation with regard to employment and occupation. Relevant cases:

    C-144/04 Mangold
    C-277/04P Lindorfer
    C-411/05 Palacios de la Villa
    C-427/06 Bartsch
    C-388/07 Age Concern England
    C-303/06 Coleman
    C-267/06 Maruko

    Some possible points for discussion:

    (1) What is the relationship between the general principle of equality and non-discrimination and the specific prohibitions of discrimination contained in the Directive? Can the latter develop into general principles of Community law? If yes, under what circumstances?

    (2) The Directive was adopted under article 13, which is an empowering provision that does not grant rights to individuals or impose obligations on Member States. Does this affect the interpretation of the Directive? Does it limit the ambit of the protection the Directive offers?

    (3) The Directive provides that discrimination may be justified if it is necessary for a particular professional activity, and that employers should accommodate the needs of disabled employees. What are the limits of these two rules? How do the rules relate to the general principle of equality?

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