Keck and Mithouard (C-267&268/91)
limits of Article 28 Court held that if the national prohibition concerned not the intrinsic qualities of the product but the way it was sold, thus constituting a selling arrangement, and, in later cases, was not discriminatory in fact and in law, the national prohibition would be acceptable and would not breach Article 28. Keck and Mithouard, two supermarket owners, sold goods at a loss which was contrary to French law. When they were prosecuted they argued that the law was contrary to Article 28 as it restricted the volume of imported goods. The ECJ said that it considered it necessary to re-examine and clarify its case law on this matter. It said it was going so in view of the increasing tendency of traders to invoke Article 28 to challenge rules which limited their commercial freedom, even though the rules were not aimed at products from other Member States. The ECJ drew a sharp distinction between obstacles to the free movement of goods arising from rules laying down the requirements to be met by goods (such as designation, form, size, weight, composition, presentation, labelling and packaging) on the one hand, and rules relating to methods of sale on the other hand. Restrictive rules applying to goods as such continue to be governed by Cassis. By contrast, national rules restricting or prohibiting certain selling arrangements will not be treated as hindering intra-state trade provided they apply to all affected traders operating within the Member State concerned, and also provided that they �effect in the same manner, in law and fact� the marketing of domestic goods and imports from other Member States. Thus it can now be argued that the ECJ distinguishes between rules that relate to the characteristics of the goods (still covered by Cassis), and those rules concerning selling arrangements for the goods (now outside Article 28).