It was notified to the authorities in Greece by the Ministry of Development (Industry Support Directorate) that a licence must be held by an individual in order for the “bake-off” method to be used in ovens when baking frozen bread and bakery products. Such a method involves quick thawing, and subsequently re-heating partially or fully pre-baked frozen bakery products. The case of ‘Alfa Vita and Carrefour Marinopoulos AE’ refers to the interpretation of Article 34 TFEU, specifically the issue of Greek legislature adhering to the marketing of bakery products using the “bake-off” method. In this case, the national legislation makes the sale of such products subject to the same requirements as those applied to the procedures followed for conventional bakery products. Inspections were carried out by “Nomarkhiaki Aftodiikisi Ioanninon” (Prefectural Authority of Ioannina; ‘the Prefectural Authority) in the supermarkets of ‘Trofo Super-Markets AE’ and ‘Carrefour Marinopoulos AE’. Through the inspections it was established that equipment for baking frozen bread and bread shops were on the premises, without an operating licence (set out by the legislation on bread-making) . As a result the Prefectural Authority, through two decisions made on 27 November 2001, arranged the termination of any activity of any bread ovens that were in use at those supermarkets. The aforementioned judgments brought actions before the national court for the purpose of the annulment of such decisions. Both ‘Trofo Super-Markets AE’ and ”Carrefour Marinopoulos AE’ argued against the decision due to the fact that Article 34 TFEU prevents “quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”.
The first issue governing Alfa Vita, was whether the provisions put into place by the Greek authorities regulating the sale of baking goods as well as “bake-off” products, complied with Article 34 TFEU. If not, it was in turn questioned whether instead those provisions consisted of measures having equivalent effect to quantitative restrictions, as MEQR’s, due to the fact that they resulted in “bake-off” products being governed under the same conditions as those which applied to the entire marketing and manufacturing process for traditional bread and bakery goods. This first issue will be examined with the third issue relating to if the national legislation was held to be obstructing the circulation of goods and found to be an MEQR, whether they constrained the import of such products; “directly or indirectly, actually or potentially, the free trading of those products between Member States?’.The second point of law raised was whether the measures put in place were with or without distinction, and if they were, would the justification for such provisions under Article 34 TFEU be acceptable on the grounds of consumer protection or public health. If the provisions were found to be without distinction, such conditions could be justified on the basis of the points specified in Article 36 TFEU, or on the basis of obligatory requirements which in turn would expand the choices of the Greek State.
The decision was reached by the ECJ that “bake-off” goods are subject to the same conditions which apply to the entire process of marketing and manufacturing traditional bakery and bread goods. Furthermore, this judgment was sustained by the Advocate General in his opinion in point 15, where it was stated per Keck, that it cannot be seen as a selling arrangement and it can be recognised outside of Article 34 TFEU. The argument put forward to explain how the ECJ decided that the national measures were not within the meaning of Article 34 TFEU was due to the fact that the costs of “bake-off” products, which results in creating a barrier when marketing them, was not taken into account by Article 34. It was recognised by the ECJ that the argument put forward by the Greek Government and the Prefectural Authority regarding justifying national measures hindering the free movement of goods on the premise that it was for the public interest grounds per Article 30 EC, or whether it was a prevailing requirement from the case-law of the ECJ where national legislation applies without distinction, as per Rewe-Zentral. However, it was established that such measures must adhere to the principle of proportionality. It was thereby decided by the Court that through the interpretation of Article 34 TFEU it was recognised as inhibiting national measures which result in making the marketing and sale of “bake-off” goods subject to the same conditions which apply to the entire process of marketing and manufacturing for traditional bread and bakery goods.
The first question asked by the national courts during the preliminary ruling was whether the requirement for an individual to own a licence for the purpose of operating a bakery, which was implemented by ‘the prefectural authority’ for the marketing of “bake-off” bakery products, constituted as a ‘quantitative restriction’ or is it simply a measure adhering to the interpretation of Article 34 TFEU. Another point of law raised by AG Maduro relating to this states that any provision which obstructs the access to the market and the circulation of goods between Member States to a larger extent can be recognised as a measure having equivalent effect to quantitive restrictions, within the scope of Article 34 TFEU, “whether directly or indirectly, actually or potentially”.
It was stated in Van der Veldt that “it is for Member States to regulate all matters relating to the composition, making and marketing of those foodstuffs on their own territory, provided that they do not thereby discriminate against imported products or hinder the importation of products from other Member States’. This therefore demonstrates that despite the outcome, member states are granted the ability to restrict the marketing of bakery and bread products through the condition of obtaining a licence for the purpose of protecting consumer standards. However, it is evident that there must be a limit to the extent to which this freedom is exercised, particularly with regards to the EC Treaty and the principal rights which are stated within it, including the free movement of goods. As aforementioned, it is laid out in Article 34 TFEU that “quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’. This article therefore enhances the idea that, “all trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as measures having an effect equivalent to quantitive restrictions” which was defined as an MEQR by the ECJ in Dassonville and Commission v Germany. The judgement in Alfa Vita is one which follows a similar outcome in the earlier case of Cassis de Dijon, where it is established that measures which are implemented “without distinction” to either imported or domestic products from other Member States (such as France in Cassis de Dijon) are essentially restricting the free movement of goods. In Alfa Vita it is evident that the courts established that the condition for a prior licence is a measure which is “applied without distinction”.
However, the court established that such measures that are seen to have equivalent effect to quantitative restrictions prohibited by Article 34 TFEU do not consist of national provisions which constrain or prohibit various “selling arrangements”. This is as long as these provisions refer to traders functioning within the state, and as long as they similarly affect the marketing of national products and from other member states. The case-law of Keck and Mithouard are referred to by the “prefectural Authority” and the Greek Government through claims that the measures implemented simply control the method in which “bake-off” goods can be sold and therefore do not breach Article 34 TFEU. However, the provisions clearly state that the objective is to specify the conditions of the operation for bakery and bread goods, which also consists of “bake-off” products. The requirement for all vendors to comply with, that are applied to traditional bakery products as well results in additional expenses for the vendors, and as a result marketing such products would prove more troublesome. Therefore such national legislation creates an obstacle for imports which does not constitute as a ‘selling arrangement’ as referred to in Keck and Mithouard. It has been held that national legislation that prevents the free movement of goods does not always oppose Community law if it can be justified either by the grounds of public interest or through one of the requirements stated through the court’s case-law where national legislation can be applied “without distinction” as seen in Rewe-Zentral.
Furthermore, with regards to the second question of whether the legislation could be justified on the grounds of consumer protection, it was held by the Court that a measure cannot be justified on the basis of promoting good quality products, if at the same time it hinders the free movement of goods. The only manner in which such national measures can be justified is through any other requirements that are also seen of vital importance, including health or consumer protection. Specifically with regards to consumer protection, it was established by the Prefectural Authority through a food specialist that consumers generally are led to believe that the bakery products they are purchasing are fresh when realistically these products do not contain any fresh nutrients or vitamins, as per Commission v Germany and Simvoulio tis Epikratias , and this is due to the “bake-off” method.
However, the Court also determined that such national measures have hindered consumers from being able to differentiate between “bake-off” and fresh, traditional products when purchasing such goods at stores. In order to market “bake-off” goods in a manner that holds less restrictions, providing the correct information relating to the content of the products could prevent this. Furthermore, with regards to health protection it was argued by the Prefectural Authority that the legislation implemented was a means of guaranteeing that during the entire operation of baking, all the conditions concerning hygiene are followed in order to prevent the risk of bread and bakery products becoming combined with unsanitary substances. Despite the objective of national measures attempting to ensure the compliance of hygiene requirements, some of these conditions which refer to the manner in which traditional goods are manufactured, are not imperative in safeguarding public health. This is due to the fact that when these requirements are applied to “bake-off” products they are futile, as such products are merely reheated or in the final process of baking when they are put out for sale. In response to the questions put forward it can be confirmed that through the interpretation of Article 34 TFEU, national measures are inhibited which results in the marketing and sale of “bake-off” goods prone to the same conditions which also apply to the entire process of marketing and sale of traditional bakery products.
With regards to formulating a view as to the merits of the judgment in Alfa Vita, the importance of the case of Keck must be recognised and evaluated on its contribution to the judgment in the above case. However, it was also suggested by the Advocate General “the difficulty in applying, in certain circumstances, the distinction made by the rule in Keck and Mithouard” in his opinion.
The method of Keck although clarifying the law in various ways, has been criticised by individuals. It was stated by AG Jacobs in Leclerc-Siplec that the doctrine implemented in Alfa Vita, excluded restrictions on advertising within Article 34 TFEU, and additionally the application of this measure is not broad enough. Furthermore, he identified three disadvantages to the approach in Keck. Firstly, it can be noted that the discrepancy between selling arrangements and measures on products is artificial due to the fact that both measures can obstruct trading between Member States, resulting in determining the type of measure turning into questioning the extent of it. Secondly, it was established that it is futile to use discrimination when deciding whether the measures comply with Article 34 TFEU. If a measure is obstructing trade, it will not desist from doing so due it also obstructing domestic trade. Finally, it was presented that the approach in Keck leads to the disintegration of the EU market, due to traders in any Member State being compelled to accept any restrictions and conform to the regulations correspondingly.
Simultaneously, AG Maduro also demonstrated the three major disadvantages in applying Keck and as a result influencing the decision in Alfa Vita. Firstly, due to the essence of the prohibition that is laid out in the doctrine of free movement of goods being unclear, for economic operators, Member States and European Community institutions this created a certain ambiguity around this topic. The opinion of AG Jacobs was supported by AG Maduro as it proves difficult to distinguish between national provisions regarding the characteristics of the goods and selling arrangements. Due to this, the current constraints on trade rely on the manner in which the rules are applied, and their concrete effects. Furthermore, the second disadvantage that was stated concerns the intricacy of its method. In Keck, this intricacy results in the Court gravitating towards referring back to the national court when relating to the responsibility of determining the character of the matter in hand. This may be viewed as a disadvantage as the additional help needed on the part of the Court to determine a case can be considered a considerable responsibility, and as stated by AG Jacobs can cause the fragmentation of the EU market. Finally, it has been recognised that the rule in Keck cannot be freely shifted into the different areas in the freedoms of movement. The term “selling arrangement” has never officially been clarified or accepted in case authorities referring to other freedoms of movement. Through case-law it is generally accepted to be defined as “all measures which prohibit, impede or render less attractive the exercise of that freedom”. This in turn creates a problem of regularity in previous case-law, as various national rules that are inspected by the Court can be considered as constraints on the other freedoms of movement, even when they are inspected through the outlook of the free movement of goods.
Such critique has since impacted the manner in which the Court has defined obstruction to interstate trade. In Commission v Italy, the idea of ‘market access’ was introduced as a different notion to the method accepted in Keck. Such a concept concerns the obstacles in entering into the market in competition law rather than measures that simply manage the regulations under which products are traded within a market without ruling out the likelihood of trading the products at all. Such an example can be seen as the rule in Commission v Italy, which does create an obstruction to accessing the market due to the fact that no-one will purchase trailers which have been designed to be specifically attached to motorcycles, when national measures have prohibited all motorcycles from being attached to such a trailer.
Regardless of the important points made in Commission v Italy, it can be noted that with regards to the judgment, the Court did not provide sufficient evidence in their reasoning. The acknowledgment of the process of market access is short and lacks detail and as a result it is treated as if the approach can be reasonably adhered to, although the ruling lacks certainty. It has been noted by certain individuals such as Professor Snell, that the concept of market access lacks coherence, and is not autonomous in its role in the Court.
In conclusion, the case of Alfa Vita has proved that there is a lack of understanding in many areas. Firstly, it has not been determined whether the national provisions discriminate between domestic and foreign products within Member States, and whether the legislation has been applied “without distinction”. Furthermore, criticism and other contributions to the case have suggested that the measures implemented by the Greek authorities, instead of being viewed as an MEQR, are obstructing market access. Nevertheless, this concept has been heavily criticised in turn and therefore emphasises how inconclusive the Court’s judgment is when concerning the extent to which Article 34 TFEU should be applied, resulting in traders having the ability to object any regulations through the use of the provisions, returning the position of the Court to that of one prior to Keck.