Abandoning Keck for a Market Access Approach? An Analysis of CJEU Free Movement Jurisprudence
| Author | Louis Head |
| Position | University of Southampton |
| Pages | 33-39 |
[2015] Southampton Student Law Review Vol.5
33
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Abandoning Keck for a Market Access Approach?
An Analysis of CJEU Free Movement Jurisprudence
Louis Head
University of Southampton
Free movement law is essential for the construction and continued development of
the internal market. In recent years there has been much debate within the Court of
Justice of the European Union (CJEU) and among academics as to the type of legal
test that should be utilised to maintain the free movement of goods, persons, services
and establishment in the European Union (EU). This debate has been most prevalent
in relation to the free movement of goods and accordingly this contribution focuses
on this area. This contribution analyses how CJEU case law has evolved to establish
whether the law is about prohibiting discrimination and protectionism or ensuring
market access and economic freedom. This contribution argues that relevant case law
indicates that the CJEU has adopted a market access test in relation to the free
movement of goods and accordingly that the law is premised on economic freedom.
It is submitted that this test is desirable as it ensures the efficient construction and
continuous development of the EU’s internal market.
Introduction
Free Movement Law in the EU’s Internal Market
he most fundamental question for free movement law remains whether the
law is about discrimination and anti-protectionism, […] or whether it is
about economic freedom”.1
This contribution analyses the relevant case law to determine the extent to which this
question has been answered, which legal test is relevant, and whether the applicable
test is desirable.
Article 262 of the Treaty of the Functioning of the European Union (TFEU) states
that: “The internal market shall comprise of an area without internal frontiers in
which the free movement of goods, persons, services and capital is ensured”. Free
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1 Jukka Snell, ‘The Notion of Market Access: A Concept or a Slogan?’ (2010) 47 CMLRev. 437-470.
2 Consolidated version of the Treaty of the Functioning of the European Union (TFEU) [2012] OJ
C326/59.
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