Reinforcing the Internal Market through Non-Discrimination and Unfettered Market Access
| Author | Irena Markitani |
| Pages | 37-43 |
S.S.L.R. Reinfor cing the In ternal M ark et
37
Vol.3
Reinforcing the Internal Market through Non-
Discrimination and Unfettered Market Access
Irena Ma rkit ani
The European Court of J ustice has essen tially utilised two tests so as to
establish and r einforce an in ternal m arket within the European Union
in which the freed om of movem ent of goods, persons, services,
establishm ent and capital is preserved. The two tests utilised are t he
“non -discrim ination” and the “mar ket access”. These two differ ent tests
exist due to the uncertainty as to th e purpose of th e rules which in turn
reflects the uncertainty as to the pr oper basis of the internal m arket the
European Court of J ustice seeks to m aterialise. The non -discr iminat ion
test aim s mainly to remove nationality based barriers; wh ereas the
market access test aims to ensu re econom ic fr eedom. The Art icle
discusses how these two tests had been applied an d evolved within the
different freedom areas; analyses t he pu rpose and t hus, th e significan ce
of each test; an d th en , comments upon their implicat ions on European
econ omic int egration an d Mem ber St ate r egulatory aut onom y.
Introduction
ree movement r ules are pivotal to th e accomplishment of th e main
objectives of the European Union (EU) and p articularly to the
establishm ent of an in ternal m arket 1 which is described in Article 26 of
the Tr eaty on the Fun ction in g of the Eur opean Union (TFEU) as “an ar ea
without internal frontiers in which the free movement of good s, persons,
services and capital is ensured…”. The European Cou rt of Justice (ECJ) h as
develop ed and refin ed the rules associated with these freedoms, aiming to
achieve th e realisation of th e in ternal market . However , there is still much
controver sy abou t the proper test that should be utilised in the ap plication of
these rules, stemming from th e u ncer tain ty of their purpose i.e. whet her th ey
are concerned with the rem oval of nation ality barriers to trad e or with
ensuring econ omic freedom . I will first proceed to delineate the approach of
the Cou rt in r espect of free m ovemen t of goods which has been th e m ost
controversial an d th en, for free movement of per sons, services, est ablishment
and capital, while com menting up on the significance of each approach in each
context. I will then, comm ent upon the un certainty surrounding these two
tests an d lastly, examine the implications of each for European econom ic
integra tion an d Mem ber State regulat ory au tonomy.
1 Article 2 Treaty on European Union
F
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