Rethinking the Market Access Approach

AuthorZhihui Chen
PositionUniversity of Southampton
S.S.L.R Abandoning Keck for a Market Access Approach? Vol.5
Rethinking the Market Access Approach
Zhihui Chen
University of Southampton
In the attempt to deal with the problems arising from the scope and terminology
introduced by the Keck “selling arrangement” exception, the CJEU introduced the
ambiguous term “market access”. Since then, the CJEU has increasingly adopted the
market access approach in place of the orthodox non-discriminatory approach when
ruling on free movement cases. Unfortunately, the true nature of market access and
its relationship with the non-discriminatory approach has never been discussed by
the court. Following the ruling in Commission v Italy (Italian Trailers) and
Mickelsson and Roos, several commentators have taken the view that the non-
discriminatory approach has been displaced. This paper will provide an alternative
view by arguing that a pure market access approach is untenable. It is suggested that
to make sense of the co-existence of market access and non-discriminatory approach,
it will be necessary to rethink the purpose of the notion market access.
lthough Keck and Mithouard 1 marks a major leap in the law on free
movement, it is definitely not the end of the development. 2 Further
refinements can be observed from the cases following Keck. In particular, the
increasing judicial preference for a market access approach brought about much
judicial and academic debate. This paper will examine whether the market access
approach has displaced the non-discriminatory approach by considering the existing
jurisprudence. It will be argued that while the courts have relied on market access to
justify their decisions, a pure market access approach is untenable, as it will
introduce more problems than it can resolve. This paper will start with a review of
the case law on the interpretation of the Keck exception and its implication on the
use of market access as a justification. Next, it will examine whether the existing case
law can be construed as establishing a market access approach before concluding in
the last section.
1 Joined Cases C-267/91 and C-268/91 Bernard Keck and Daniel Mithouard [1993] ECR I-6097.
2 S Weatherill, Cases & Materials on EU Law (10th edn, OUP 2012) 329.

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