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ion between selling arrangements and other rules is still useful: for sure, the Court did
not openly overrule Keck, and yet the market access formula might suggest, in fact if not in law, theend of the Keck dichotomy. Whether this is a welcome step depends very much on the view that onehas of the internal market, since the approach taken has far-reaching consequences on furthersubjecting national regulatory choices to the proportionality and necessity scrutiny demanded by themandatory requirements doctrine. Furthermore, the rulings also raise broader questions about the
constitutional justification underpinning a market access approach: the expansion of the scope of theEC Treaty at the expense of national regulatory autonomy must be justified by sound hermeneuticprinciples or else its legitimacy might be doubted.After having recalled the opinions of the Advocates General and the rulings of the Court, we will turn
to assess their impact on the definition of “measure having equivalent effect”. In particular, we will
focus on the meaning of the notion of market access and investigate whether the broadening of the
scope of “measure having equivalent effect to a quantitative restriction” can be rooted in firm
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constitutional justifications.The Opinions of the Advocates General
Commission v Italy arose as a result of infringement proceedings in relation to an Italian rule whichprohibited the towing of trailers by mopeds, motorcycles, tricycles and quadricycles, so that trailers
could be towed only by “motor vehicles”.4 The case was first assigned to a chamber which was notgoing to hold a hearing since none of the parties had requested it. However, after A.G. Légerdelivered his Opinion,5 the Court decided to reopen the oral procedure and assign the case to theGrand Chamber.6 In particular, the Court invited the parties and Member States to submit views as tothe extent to which rules governing the use of goods, which apply without distinction to imported anddomestic goods, should be regarded as measures having equivalent effect to quantitative restrictionson imports. Besides Italy, eight Member States submitted observations7 : of those, five argued that
the Keck “certain selling arrangements” criterion should be extended to rules on the use of a product,so that rules merely limiting, rather than prohibiting, use should not fall within the scope of Art.28 EC
unless discriminatory.8 Greece took a similar viewpoint with the caveat that if the use of the product isa feature of the movement, then the measure should be assessed on a case by case basis. TheNetherlands *E.L. Rev. 916 argued in favour of abandoning the Keck case law and replacing it with amarket access test as suggested by A.G. Jacobs in Leclerc-Siplec 9 ; whilst the Commissionconsidered that the Dassonville formula should apply to use of goods rules so that the existence of abarrier to intra-Community trade should be assessed on a case-by-case basis. Italy, from what we aretold, argued that the answer to the question posed by the Court would depend on whether the productcould be used for other purposes. In any event, the Italian Government argued that the rules at issuein the case were justified by road safety considerations.
Whilst A.G. Léger had analysed the issue only having regard to theDassonville formula, A.G. Botengaged in a critical analysis of the Keck ruling and argued that it should not be extended to rules
concerning the use of a produc