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The touchstone of the judgment of the Court of Justice in Keck has been the question of how to apply the criteria allowing the exclusion of selling arrangements from the scope of Article 28 EC, in particular in respect of national regulatory rules relating to advertisement. This article examines the evolution of the Court's approach to selling arrangements in the light of the requirements set out in Keck. The judgment in Gourmet has added to the debates as it highlights the issue of the ‘market access’ test as a reference for the assessment of factual discrimination in respect of selling arrangements covered by the Keck exception. The article focuses on the impact of Gourmet on the determination of the outer limits of the scope of application of Article 28 EC, and thus attempts to find a place for Gourmet within the spectrum between the rejection of the judgment in Keck at one end, and the refinement of the requirement relating to ensuring that there is no factual discrimination between imported and domestic products in the application of national rules covered by the Keck exception, at the other.
