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Principles of Market Access Workshop

                                       The Principle of Market Access in EU Law:

                                  What Does It Mean? And Where Is It Taking Us?

 

Friday 9 December 2011

Elder Room, Old College, University of Edinburgh

 

 

 

1. Workshop objectives

This workshop aims to offer scholars/actors in the field an opportunity to reflect critically on the meaning, function and trajectory of market access in the case law on intra-EU movement. In a break with the traditional format, participants were invited to submit ideas, themes and questions for discussion. These suggestions were then grouped together in discussion paper, which was circulated to participants in advance, under three broad discussion headings:

-  Defining Market Access: A Legal Test, an Empirical (Economic) Test or a Term of Art?

-  Applying Market Access: Thresholds, Limits and Justiciability

-  Broader issues: Convergence and Constitutional Implications

[See further discussion paper – included in full below]

 

1.2 List of Participants

 

Thomas Horsley                       Lecturer, Liverpool Law School

Niamh Nic Shuibhne                 Professor of European Law, University of Edinburgh

David Edward                          Former Judge at the European Court of Justice and Professor Emeritus, University of Edinburgh

Phil Syrpis                                Lecturer, University of Bristol

Vassilis Hatzopoulous               Visiting Professor, College of Europe, Bruges

Panos Koutrakos                      Professor of European Law, University of Bristol

Gareth Davies                           Professor of European Law, VU University Amsterdam

Dimitrios Doukas                      Senior Lecturer, Queen’s University Belfast

Alina Tryfonidou                       Lecturer, University of Reading

Daniel Wilsher              Senior Lecturer, City Law School, London

Michael Dougan                       Professor of European Law, Liverpool Law School

Stefan Enchelmaier                   Professor of European Law, York Law School

 

1.3 Agenda

 

11:00-12:30                Welcome and Introduction

                        Thomas Horsley and Niamh Nic Shuibhne

Defining Market Access: A Legal Test, an Empirical (Economic) Test or a Term of Art?

 

Key issues:       Market access and discrimination: conflict or overlap? David Edward, Phil Syrpis

Is market access a legal term or should it be seen as factual (economic) one? Vassilis Hatzopolous, Ioannis Lianos

12.30: 13:30    Lunch 

13:30-15:00    Applying Market Access: Thresholds, Limits and Justiciability

 

Key issues:       Does market access require qualification; if so, then how do we do that? David Guild, Panos Koutrakos       

Is the Court capable of applying a market access (+qualifier) test? Gareth Davies

How (in)consistent is the Court in its application of market access? Dimitrios Doukas

15:00-15:30    Refreshments

 

15:30-17:00    Broader issues: Convergence and Constitutional Implications

 

Key issues:       Where does the market access case law sit alongside other developments in the jurisprudence? Alina Tryfonidou, Daniel Wilsher

Can a market access approach have resonance for other areas of EU law? Catherine Barnard

 

Market access: textual credibility or judicial policy-making? Michael Dougan

 

 

17:00-17:30    Final Reflections

 

Key issue:         Does the Court listen? Does the Court learn? Do we listen to each other? Do we learn? Stefan Enchelmaier

 

19:30               Workshop Dinner: Grainstore Restaurant, Victoria Street

 

 

1.4 Group Photograph

 

 

 

 

 

 

 

 

1.5 Discussion Paper – In Full

Workshop Discussion Paper

 

Thomas Horsley[1]

 

1. Introduction

1.1 Background

Alongside the principles of non-discrimination and mutual recognition, market access is unquestionably a benchmark principle of EU free movement law. In Commission v. Italy (Motorcycle Trailers), the Grand Chamber ruled to this effect that:

‘[Art 34 TFEU] reflects the obligation to respect the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of [Union] products to national markets.’[2]

As the Grand Chamber sought to emphasise, market access is not a new addition to the case law on intra-EU movement. Its origins can be traced back to a series of ground-breaking decisions on the scope of the individual Treaty freedoms.[3] These include, in particular, the judgments in Keck, Alpine Investments, Bosman and Graf.[4] In each of these cases, the Court relied on a market access test to define the ‘outer limits’ of the Treaty freedoms.[5] More recently, the Court has again relied on the concept in order to draw a line in the sand between Union and Member State competence for the regulation of the internal market. Alongside the much-discussed ruling in Commission v. Italy (Motorcycle Trailers), market access has surfaced repeatedly in the case law on goods, workers, services and establishment.[6] In addition, the concept has also formed the centrepiece of the Court’s efforts to shape the contours of the revised Treaty rules on intra-EU capital movements.[7]

To date, the Court has left practitioners, legal scholars and market participants largely in the dark (or, over-illuminated and thoroughly confused) as regards the meaning(s) of market access. From its point of introduction into the case law on intra-EU movement in Keck to the present day, a cloud of uncertainty has surrounded the scope of application of the concept. This problem persists notwithstanding the existence of an ever-increasing body of literature analysing the position and function of the market access principle in free movement law.[8] As yet, there is no broad consensus on the substance and/or normative strength of the market access test in the literature. Commentators continue to offer differing views on both points. Academic efforts to understand the position of market access are also continually tested by new developments in the case law. Unfortunately, however, these developments rarely shed much light on our understanding of market access or on its ‘coming together’ as a coherent – and thus, more useful – principle of internal market law. To borrow a phrase from Stefan Enchelmaier, when reading the Court’s evolving case law on the scope of the Treaty freedoms, it really does sometimes seem that we witnessing movement in all sorts of directions.[9]

The tension surrounding market access is not simply a matter for abstract academic discussion. In the first instance, the persisting confusion over the ‘market access narrative’ does little for legal certainty. Regulators, practitioners, market actors and Union citizens are increasingly left to fathom the Court’s next move(s). The same ambiguity undoubtedly contributes to the workload of the Court, which, owing to its reluctance to concretise the meaning of market access, very often finds itself requested to rule on umpteen close factual permutations of the same legal problem. For the Member States, the uncertainty surrounding the outer limits of the Treaty freedoms – as expressed through debates over the market access test in particular – gives rise to legitimate concerns over the appropriate distribution of competence between the Union and the Member States with respect to the regulation of the internal market.

 

 

1.2 Workshop objectives

This workshop aims to offer scholars/actors in the field an opportunity to reflect critically on the meaning, function and trajectory of market access in the case law on intra-EU movement. In a break with the traditional format, participants were invited to submit ideas, themes and questions for discussion. These suggestions have been grouped together under three broad discussion headings:

-  Defining Market Access: A Legal Test, an Empirical (Economic) Test or a Term of Art?

-  Applying Market Access: Thresholds, Limits and Justiciability

-  Broader issues: Convergence and Constitutional Implications

The purpose of this discussion paper is to provide an overview of the points/questions raised under the individual headings. This is intended to help structure the roundtable discussion in Edinburgh. Each heading is sub-divided into ‘key issues.’ Again, this reflects the substance of the submissions received so far as possible.

Finally, please note: we appreciate that themes and thus discussions will overlap across the day, but please do try (broadly) to bear in mind the definition/application/implications structure that we have established.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Theme 1:        Defining market access: a legal test, an empirical (economic) test or a term of art?

The key issue raised by participants, and the starting point for our discussion in December, is the definition of market access. It says much that this utterly basic premise was suggested as a priority for discussion in almost all of the responses received. Summarising the views of several participants, Gareth Davies noted that, ‘the missing element in discussions of market access is any coherent or accepted definition of what market access means, and what a restriction on market access is.’

In response to this uncertainty over the concept’s meaning, two distinct issues emerged. First, several participants questioned the relationship between the market access test and the principle of non-discrimination. Secondly, on the same issue, broader questions were raised about the nature of the market access test: is it (or should it be) a legal test or is it (or should it be) seen as an economic test? And if the latter, what does it bring to the resolution of disputes by legal adjudicators?

Market access and discrimination: conflict or overlap?

·          Is market access just a synonym for indirect discrimination? Using Jukka Snell’s terms, is market access really just a ‘slogan’ rather than a substantive test?[10]

Consider, for example, the Court’s application of the market access test in Gourmet International Products:

‘... in the case of products like alcoholic beverages, the consumption of which is linked to traditional social practices and to local habits and customs, a prohibition of all advertising directed at consumers in the form of advertisements in the press, on the radio and on television, the direct mailing of unsolicited material or the placing of posters on the public highway is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are instantly more familiar.’[11]

However, contrast that example with the Court’s application of the market access test in Commission v. Portugal (Golden Shares):

   ‘...although the [national measures] at issue apply without distinction to both residents and non-residents, it must none the less be held that they affect the position of a person acquiring a shareholding as such and are thus liable to deter investors from other Member States from making such investments and, consequently, affect access to the market.’[12]

·                                                                                                                                         Several participants also questioned the extent to which the confusion between market access and indirect discrimination applies more generally to the Court’s case law on measures that are liable to ‘hinder’, ‘impede’, ‘deter’ or ‘render less attractive’ the right to intra-EU movement.  Are these concepts all just ‘verbiage’[13] for discrimination?

 ‘All the vague expressions the Court uses in [its] formulae ultimately boil down to a question of unequal, that is, additional burdens imposed by indistinctly applicable measures on providers from other Member States.’[14]

‘There is very little one can point to as examples of non-discriminatory restrictions which have been found to fall within the scope of the Treaty. Notwithstanding ambiguous language in the judgments the actual results of cases fall overwhelmingly within the definition of indirect discrimination.’[15]

 

·          Phil Syrpis isolated the Keck ruling a key source of tension with respect to the relationship between market access and discrimination. In that ruling, market access entered the vocabulary on Art 34 TFEU alongside the Court’s attempt to re-orientate aspects of its case law on the discrimination test:

‘...contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.’ [16]

‘Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of [Art 34 TFEU].’[17]

 

Was ‘market access’ in paragraph 17 only ever meant to be a statement on the conclusions of paragraph 16 as opposed to a substantive test?

 

Is market access a legal term or should it be seen as factual (economic) one?

The second issue on definition moves away from the discrimination/market access dichotomy and questions whether market access is/should be viewed through an economic lens or, alternatively, construed as a separate legal ‘term of art’.

An economic test?

·                                                                                                                                         Gareth Davies, Dimitrios Doukas and Ioannis Lianos were keen to explore in greater detail the economic characteristics of the market access test. Doukas, in particular, emphasised that market access is ‘primarily an economic concept’.

Supporting this view, the ECJ has recently ruled that:

‘[A] restriction exists, in particular, if [economic operators] are deprived of the opportunity of gaining access to the market of the host Member State under conditions of normal and effective competition.’[18]

·                             Drawing on insights from economic theory, Ioannis Lianos has argued that the market access test should be focused on eliminating inefficient obstacles to intra-EU trade. For Lianos, ‘inefficient obstacles’ to intra-EU trade are characterised by national measures that impose more than just additional costs on foreign products.[19]

‘If… the overall aim of economic integration is to enhance efficient trade, then only restrictions of inter-state trade that modify the competitive relationship between the imported goods and the domestic goods, in favour of the second, should be included in the first step of the analysis [the scope of the Treaty freedoms]’[20]

·                                                                                                                                         Taking a different view, Catherine Barnard pointed to the definition of market access in WTO law as a possible point of comparison/source of inspiration for the concept’s use in EU free movement law.

 

·                                                                                                                                         Doukas also observed that the concept’s economic nature finds support in the Court’s application of threshold tests (typically: de minimis/remoteness). See, for example, the Court’s analysis in Burmanjer (discussed in more detail in section 2.2 below):

‘It is... indisputable that the itinerant sale of subscriptions may be a good way of bringing to consumers’ knowledge periodicals from all sources. The Commission submits in that regard that the latter statement is true, in particular, as regards periodicals of foreign origin...

Nevertheless, it seems to follow from the information in the file transmitted to the Court that, if those rules did have such an effect, it would be too insignificant and uncertain to be regarded as being such as to hinder or otherwise interfere with trade between Member States.’[21]

·                                                                                                                                         Doukas also pointed to parallels between the Court’s application of threshold tests in EU free movement law and its case law on Art 114 TFEU, addressing the limits of the Union legislature’s competence to contribute to the regulation of the internal market.

On this point, we might recall the Court’s statement in Tobacco Advertising that:

‘[Art 114 TFEU] [is] intended to improve the conditions for the establishment and functioning of the internal market. To construe that article as meaning that it vests in the Community legislature a general power to regulate the internal market would not only be contrary to the express wording of the provisions cited above but would also be incompatible with the principle embodied in [Art 5(2) TEU] that the powers of the Community are limited to those specifically conferred on it.’[22]

·                                                                                                                                       Taking things further, Davies, in particular, reflected on the implications of adopting an economic approach to market access in EU free movement law. He observed that a factual (economic) reading of market access would require the Court to take account of the circumstances of particular, defined markets:

 

‘Free movement law should and does try to create the same market as competition law does, and is most coherently based on the same underlying economic perceptions.’[23]

 

‘If free movement law wishes to engage in an economic sophisticated way with its goals and definitions, competition theory is therefore the place to begin.’[24]

 

·                                                                                                                                       However, as several participants recognised, the economic reading of market access poses some difficult questions:

 

-         Does the economic paradigm really provide a satisfactory (and coherent?) framework for the case law on intra EU movement?

 

-         As Alina Tryfonidou notes: can we really talk of ‘barriers to entry’ and ‘distortions of competition’ when dealing with natural persons/Union citizens?

 

-         To what extent does an economic reading of market access simply overlap with the discrimination model? In other words, are ‘distortions of competition’ synonymous with indirect discrimination?

 

A legal term of art?

·                                                                                                                                         As an alternative to the discrimination/economic approach, participants mooted the idea of construing market access as a specific legal ‘term of art’. In this sense, market access would operate on the basis of workable legal presumptions, crafted according to the prevailing view of the demands of market integration. Reviewing the case law, there is clearly evidence of such an approach to the definition of obstacles/restrictions to intra-EU movement. Perhaps most famously, the Court in Keck introduced the concept of ‘certain selling arrangements’ in order to exclude from the scope of Art 34 TFEU a specific category or ‘type’ of national rule in the absence of any discriminatory effects on imported goods.

 

·                                                                                                                                         In the spirit of the Court’s Keck ruling, several participants identified possible operating criteria for a legal interpretation of market access. In the first instance, Barnard and Vassilis Hatzopoulos pointed to the possibility of distinguishing between national measures that affect access to and the exercise of an activity.[25]

 

·                                                                                                                                         Support for the access/exercise distinction can be found in the Opinions of Advocates General Lenz (in Bosman) and Fennelly (in Graf).[26] See also, most recently, the Greek Government’s argument in Case C155/09 Commission v. Greece (Transfer Taxes):

‘[T]he Hellenic Republic maintains that even provisions applicable without distinction which prevent or deter a national of a Member State from leaving his country of origin to exercise his right to freedom of movement constitute obstacles to that freedom only if they make the access of workers to the labour market subject to conditions.’[27]

Yet, note the Court’s statement in Commission v. Denmark (Vehicle Registrations):

The manner in which an activity is pursued is liable also to affect access to that activity. Consequently, legislation which relates to conditions in which an economic activity is pursued may constitute an obstacle to freedom of movement within the meaning of that case law.’[28]

-                                                                                                    Is there a sound normative basis for upholding the access/exercise distinction?

 

-                                                                                                    As Tryfonidou noted, why should the form and not the effects of a national measure matter?

 

·                             A number of participants also encouraged us to think more broadly about the nature and function of market access as a legal test in EU free movement law. For example, Enchelmaier  questioned whether or not market access is better construed as an objective of market integration rather than a substantive test. According to Enchelmaier , the specific Treaty rules on intra-EU movement can be viewed as serving the objective of establishing a functioning internal market in which conditions are similar to those of a domestic market, not a market without rules or even one in which rules are prohibited as a matter of principle unless justified. On this basis, he concludes that ‘market access is, so to speak, about the “why,” not the “how”’.

Alternatively, should we accept Snell’s argument to the effect that, as a legal test in EU free movement law, market access is/should really just about enabling the Court to fashion an intuitive approach to the outer limits of the Treaty freedoms?

‘Market access may allow the Court to avoid difficult choices concerning the reach of the free movement law; it grants it the maximum freedom of manoeuvre. As the term lacks clear content, the Court may use it freely wither to approve or condemn measures that it happens to like or dislike.’[29]

 

 

 

 

 

 

 

 

 

 

 

 

 

Theme 2:        Applying market access: thresholds, limits and justiciability

 

‘If market access is ultimately the best criterion, applicable across the range of internal market law, there must nevertheless be some way of delimiting the scope of the freedoms… Otherwise, there is a danger of setting off again down the fausse piste that ended with Keck.’[30]

 

In the second session, we turn from matters of definition to those of application. In this connection, three key issues emerged from participants’ submissions. First, does market access require qualification; if so, then how? Second, is the Court capable of applying a market access (+qualifier) test? Third, how (in)consistent is the Court in its application of market access?

 

Does market access require qualification; if so, then how do we do that?

·                                                                                                                                              On application, the key issued highlighted by all participants was the need to identify workable limits to the market access test (presuming and/or to the extent that one agrees, in principle, with its function as a substantive test in EU free movement law).

 

·                                                                                                                                              Several potential ‘qualifying’ principles/test were identified in the submissions: the de minimis test, the remoteness test (defined as effects ‘too uncertain and indirect’) and the criterion of direct/indirectness.

 

De minimis?

 

Recall here the efforts of AG Jacobs to introduce such a test in Leclerc-Siplec:

 

‘If the principle is that all undertakings should have unfettered access to the whole of the [Union] market, then the appropriate test in my view is whether there is a substantial restriction on that access. That would of course amount to introducing a de minimis test into [Art 34 TFEU]. Once it is recognized that there is a need to limit the scope of [Art 34 TFEU] in order to prevent excessive interference in the regulatory powers of the Member States, a test based on the extent to which a measure hinders trade between Member States by restricting market access seems the most obvious solution[31]

 

 

 

 

The Court’s official line on de minimis:

 

‘The articles of the [TFEU] concerning the free movement of goods, persons, services and capital are fundamental Community provisions and any restriction, even minor, of that freedom is prohibited.’[32]

 

See also the Opinion of AG Bot in Case C-110/05 Commission v. Italy (Motorcycle Trailers):

 

‘[Art 34 TFEU] does not draw, between measures that can be described as measures having an effect equivalent to a quantitative restriction, a distinction based on the magnitude of the effects they have on trade within the Community.’[33]

 

‘[An obstacle to intra-EU movement] does not... need to be actual and significant, but must be at least possible.’[34]

 

Contrast the above views with the Court’s conclusions in Burmanjer:

‘Nevertheless, it seems to follow from the information in the file transmitted to the Court that, if those rules did have such an effect, it would be too insignificant and uncertain to be regarded as being such as to hinder or otherwise interfere with trade between Member States.’[35]

And, more recently, in connection with the case law on the ‘use of goods’:

‘[A restriction] on the use of a product in the territory of a Member State may, depending on its scope, have a considerable influence on the behaviour of consumers, which may, in turn, affect the access of that product to the market of that Member State’[36]

‘Where the national regulations for the designation of navigable waters and waterways have the effect of preventing users of personal watercraft from using them for the specific and inherent purposes for which they were intended or of greatly restricting their use, which is for the national court to ascertain, such regulations have the effect of hindering the access to the domestic market in question for those goods’[37]

-         Is the phrase ‘greatly restricting’ to be read as a de minimis test?

 

-         Does such a test apply only to non-discriminatory measures regulating the use of goods or might it also be applied, for example, to discriminatory selling arrangements?

 

·                                  With regard to the de minimis test, Panos Koutrakos noted:

 

‘Market access and de minimis: does the formal refusal to accept the latter make much sense in the light of the former? Is such a test not inherent in any conception of market access? Is it possible to apply the market access test in a meaningful way without taking into account a de minimis concept? If not, would a broad understanding of the latter not address the shortcomings of its general application in the area of free movement?’ 

 

·                                  Alternatively, Enchelmaier mooted the possibility of drawing parallels with the (Court’s) interpretation of the ‘effect on intra-EU trade’ criterion in e.g. Arts 101 and 102 TFEU. Could this criterion offer a workable solution?

 

A Remoteness test?

 

‘[T]he remoteness test excludes from the ambit of the free movement provisions any situation where there is no causal link between the measure concerned and the impact on intra-Community trade.’[38]

See, recently, the conclusions of the Grand Chamber in Case C‑211/08 Commission v. Spain (Hospital Treatment):

‘[T]he possibility that persons insured under the Spanish national health system might be induced to return early to Spain in order to receive hospital treatment there which has been made necessary by a deterioration in their health during a temporary stay in another Member State, or to cancel a trip to another Member State – for tourism or study, for example – because, if their case does not fall within the scope of the second sentence of Article 4(3) of Royal Decree 1030/2006, they cannot count on the competent institution making a complementary contribution if the cost of equivalent treatment in Spain exceeds the level of cover applicable in that other Member State, appears too uncertain and indirect. Accordingly, the legislation at issue cannot, in general terms, be regarded as restricting the freedom to provide hospital treatment services, tourist services or educational services’[39]

-         When is an effect on intra-EU movement ‘too uncertain and indirect’?

 

-         Does/should this test apply uniformly across the individual freedoms? To both discriminatory and non-discriminatory national rules or only to the latter?

 

-         How does/should the remoteness test interact with the de minimis criterion?

 

·                                  Finally, opening up a new line of enquiry, Doukas mooted the idea of introducing a further (alternative) test to limit the scope of the market access test. He questioned whether: ‘the EU emerging principle of abuse [could] set an effective limit on excessive reliance on market access?’

 

Is the Court capable of applying a market access (+qualifier) test?

·                                                                                                                                              In addition to raising points of definition/substance, several participants questioned the Court’s institutional capacity to apply threshold tests, in particular, the de minimis test.

 

·                                                                                                                                              Davies noted that an economic approach to market access may present problems for the Court:

‘It would require that account be taken of specific circumstances in the market, since these may determine whether a measure actually does restrict access or not. But this would make the law clumsy and expensive, and risk sending it the way of competition law, where cases are largely decided by committees of economic experts. Is this suited for a branch of law which is not exclusively applicable between large corporations, but is also used by individuals in lower courts?’[40]

 

Similarly, Doukas has argued:

‘[Market access] would shift the emphasis to a balance and require a more sophisticated assessment of economic or statistical data. This would be a task for which courts are ill-equipped, and would also be to the detriment of legal certainty.’[41]

However, the above views notwithstanding, is the case law moving in the direction of increased economic/market? Moreover, should it do so?

See here eg the analysis of AG Kokott in Case C-142/05 Mickelsson and Roos:

It must therefore be examined whether the national measure protects domestic products which are in competition in the sense that it affects products from other Member States more than competing domestic products.[42]

Motorboats are possibly products which are in competition with personal watercraft. In the absence of sufficient factual information it is not possible to assess in the present case whether motorboats are in competition with personal watercraft and whether personal watercraft are more affected by the Swedish rules than the comparable domestic products; this is a question for the national court.’[43]

See also, by analogy, the recent ruling of the EFTA Court in Case E-16/10 Philip Morris Norway AS, interpreting Art 11 EEA:

‘In order to assess whether that is the case [i.e. the contested product advertising ban was discriminatory], an analysis of the characteristics of the relevant market... is necessary.’[44]

 

·                                  Finally, even if we accept that there is an increased role for market analysis in the application of the market access test/the obstacle framework, to what extent should this task be reserved for national/referring courts?

Recall here the Court’s comments on its own role in the preliminary reference procedure:

 

‘[I]t must be borne in mind that it is the task of the Court of Justice to take account, under the division of jurisdiction between the European Union courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the question put to it is set.’[45]

 

How (in)consistent is the Court in its application of market access?

·                                                                                                                                              The lack of consistency in the Court’s case law on market access was a frustration expressed almost uniformly by participants.

 

·                                                                                                                                              Michael Dougan, for example, pointed to examples in the recent case law of the Court’s ‘holding back’ in its application of the market access test. See here, for example, Case C-565/08 Commission v. Italy (Maximum Fees for Lawyers), judgment of the Court (Grand Chamber) of 29 March 2011:

‘[T]he Commission argues that the existence of maximum tariffs applicable to lawyers’ fees prevents the services of lawyers established in Member States other than the Italian Republic from being properly remunerated and dissuades certain lawyers who claim fees higher than those fixed by the contested provisions from temporarily providing their services in Italy or establishing themselves in that Member State.[46]

 

The ECJ’s response:

‘[T]he concept of restriction covers measures taken by a Member State which, although applicable without distinction, affect access to the market for economic operators from other Member States’[47]

 

However...

 

‘The existence of a restriction within the meaning of the Treaty cannot ... be inferred from the mere fact that lawyers established in Member States other than the Italian Republic must become accustomed to the rules applicable in that latter Member State for the calculation of their fees for services provided in Italy’[48]

 

-                                                                                                    How can this ruling be squared with the application of market access in, for example, the Court’s case law on national measures regulating the use of goods?[49]

 

·                                                                                                                                                   Equally, how do we explain the Court’s continued adherence to the criterion of ‘certain selling arrangements’ in Keck?

See eg Case C-108/09 Ker-Optika:

 

‘National legislation prohibiting the selling of contact lenses via the Internet concerns a selling arrangement characterised by the delivery of such lenses to the customer’s home.’[50]

 

-   Is the Court’s decision to keep its Keck formula a problem for consistency?

 

-  Isn’t it a measure’s effect on intra-EU movement and not its form that is significant?

 

·                                                                                                                                              Approaching the consistency issue from a different perspective, Koutrakos asks whether we are expecting too much from the Court:

‘Might it not be sensible to accept that there would be no rules which would enable us to apply the free movement prohibitions in a perfectly predictable way? Can we really envisage alternative methods which would not provide for leeway in the process of applying the Treaty provisions? Is flexibility not at the core of the application of the prohibitions? And, if so, is a degree of uncertainty (and perhaps inconsistency) not an inevitable hazard.’

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Theme 3:             Broader issues: convergence and constitutional implications

The aim of the third session is to reflect on broader issues generated by the market access debate. Two key questions emerge from participants’ submissions. First, where does the market access case law sit alongside other developments in the jurisprudence? For example, Barnard invites us to reflect on whether a market access approach could have resonance for other areas of the case law, such as sex discrimination. Second, does market access enjoy any textual credibility or is it simply judicial policy-making?

Where does the market access case law sit alongside other developments in the jurisprudence?

 

·                                                                                                                                              Several participants were keen to discuss the relationship between the market access test and the erosion of the wholly internal rule/phenomenon of reverse discrimination.

 

·                                                                                                                                              Tryfonidou and others questioned, for example, whether market access requires a ‘cross-border specificity’ or, alternatively, is it (or should it be) simply sufficient that a particular national measure restricts an individual’s economic freedom/fundamental rights (to a sufficient degree)? Is the economic freedom/fundamental rights distinction significant here?

 

·                                                                                                                                              Equally, where does market access sit with respect to the Court’s evolving case law on Arts 20 and 21 TFEU?  (Rottmann/Ruiz Zambrano/McCarthy/Aladzhov)[51]

 

Contrast eg Case C-434/09 McCarthy:

 

‘Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include this application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.’[52]

 

With, most recently, Case C-434/10 Aladzhov:

 

‘[A] situation such as that of Mr Aladzhov, who seeks to travel from the Member State of which he is a national to another Member State, is covered by the right of citizens of the Union to move and reside freely in the Member States.’[53]

·                             Can Union citizenship inject normative support into the market access test?

 

‘The legitimacy for the Court’s extensive interpretation [of the obstacle term] might be... convincingly found in a joint teleological interpretation of the free movement and citizenship provisions. As a result of the introduction of Union citizenship, the telos justifying the Court’s interpretation has shifted from the internal market to include the protection of individual rights.’[54]

See here also eg Tryfonidou:

‘Fully-fledged citizenship status appears to be requiring the Union to grant a number of minimum rights to all its citizens, including the (economic) right to freely conduct a commercial activity – to trade – in an inter-state context.’[55]

-         However, how far, if at all, can/should citizenship discourse be relied upon to rationalise the Court’s broad reading of the term obstacle to movement in EU free movement law?

 

·                                                                                                                                              Widening the circle further, Dougan sees the development of the market access test as part of a more general shift in the case law in favour of greater scrutiny of Member State rules against not only the proportionality principle, but also other general principles of Union law (especially fundamental rights). In his view:

 

‘Market access is part of a broader phenomenon across EU law, not just the internal market: the apparently unstoppable growth in the “European public law space,” which we see also in cases like Mangold and Kücükdeveci.’

‘So shouldn’t we ask the same questions about market access/the internal market as we do about those cases/contexts? I.e. is there really any justification for subjecting vast swathes of Member State regulation to the EU’s system of administrative law? In other words: think back from the consequence of applying EU law, not just forward from the trigger for applying EU law, and ask whether those consequences justify the trigger in the first place.’

·                             Wilsher linked the debate on market access to discussion of the EU’s federal characteristics:

‘How far does the market access idea relation to the allocation of powers between the EU and the Member States? Essentially what vision of federalism does it embody? What does this say about the political and constitutional nature of the EU as compared to ‘normal’ federal systems?’

Can a market access approach have resonance for other areas of EU law?

 

·                             Steering discussion in a new direction, Barnard raised the prospect of exploring the possibility of applying market access in new contexts, in particular the area of sex discrimination.

Market access: textual credibility or judicial policy-making?

·                             On textual credibility: the Treaty freedoms speak almost universally of the need to eliminate ‘restrictions’ on intra-EU movement. Does this not support a market access approach?

 

‘Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited.’ (Art 49 TFEU)

 

‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.’ (Art 56 TFEU)

 

Contrast: Art 45 TFEU (Workers):

 

‘Freedom of movement for workers shall be secured within the Union.’

 

‘Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.’

 

·                             What is the relationship between the market access test and the Court’s broad effects-based language of ‘hindering’ or ‘impeding’ intra-EU movement etc?

 

See here eg Säger:

 

‘[Art 56 TFEU] requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services[56]

For a combined reading of market access and ‘deterrent/dissuasive’ effects, see eg Commission v. Portugal (Golden Shares):

 

   ‘...although the [national measures] at issue apply without distinction to both residents and non-residents, it must none the less be held that they affect the position of a person acquiring a shareholding as such and are thus liable to deter investors from other Member States from making such investments and, consequently, affect access to the market.’[57]

·                             Can we find normative support for a market access test? Or is market access really nothing more than a label for judicial policy-making?

 

To what extent can the market access test be defended with the framework of the Treaty’s objective of establishing a functioning internal market, for example? See here eg the Opinion of AG Jacobs in Case C-412/93 Leclerc-Siplec:

 

‘[F]rom the point of view of the Treaty’s concern to establish a single market, discrimination is not a helpful criterion… Restrictions on trade should not be tested against local conditions which happen to prevail in each Member State, but against the aim of access to the entire [Union] market,’[58]

 

And, more recently, Spaventa:

 

‘If the rationale behind [the market access approach] cannot… be found in a movement/intra-Community trade telos, it might be found in the broader aim of ensuring the competitiveness of the internal market as a whole, i.e. the competitiveness of the sum of the 27 national markets, and the need to dispose of those rules which, either because of the way they are drafted or because of economic and technological developments, are sub-optimal or altogether unnecessary.’[59]

 

Note however, Snell has also argued that:

 

‘Market access may simply provide a sophisticated-sounding garb that conceals decisions based on intuition.’[60]

 

·          Similarly, Dougan questioned the extent to which the Court’s market access case law reflects ‘judicial whimsy.’

 

-      However, if we accept that market access is judicial policy-making, what factors (might) underpin/steer the Court’s policy choices?

·                                  Wilsher points to one potential factor at work:

 

‘The decision pulling back from market access in Keck seemed to reflect greater EU positive harmonisation under the Delors plan. Do recent events, particularly the failure of the Services Directive, suggest that the Court is now seeing itself as the motor of integration again?’

            -    Are we witnessing a new wave of judicial activism at the Court?

        -     Crucially, where are the limits of this judicial policy-making? 

 

        -     How should these be enforced?

 

·                             Finally, what impact does the Court’s structure have on the development of the law? Do structural factors create an ideal environment for judicial policy-making?

 

-         Is there a sufficient degree of coherence across the Chambers?

 

-         Is lack of specialisation within the EU court structure a source of strength or weakness?

 

-         Is the Grand Chamber a helpful device?

 

-         What role do/should the Advocates General play in the market access debate?

 

In Case C-463/00 Commission v Spain, the late Advocate General Ruiz Jarabo Colomer offered his view on the role of the Advocate General:

 

‘The Advocate General's duty … is, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it. His primary duty is to suggest to the Court of Justice a solution which is legally accurate and takes into account the logical principles of reasoned and coherent argument without which a judicial decision would be perceived as no more than an arbitrary and unpersuasive exercise.’[61]

 

-         How do the contributions of the Advocates General to the market access debate fare against this statement?

 

 

 

Closing session:         Final reflections

In the final session, attention turns to discussion of the role of – or perhaps, even more strongly, the responsibility of – the Court and of legal scholars in responding to the market access problem. In his submissions to the workshop, Enchelmaier posed some provocative questions on both points: Does the Court listen? Does the Court learn? Do we listen to each other? Do we learn?

Let us leave it to Stefan to explain these questions!

 

 

We look forward to seeing you in Edinburgh!

 

Thomas Horsley (& Niamh Nic Shuibhne)

 

 



[1] Lecturer in Law, Liverpool Law School. My thanks, with the usual proviso, go to Niamh Nic Shuibhne for her helpful comments on an earlier draft.

[2] Case C-110/05 Commission v. Italy (Motorcycle Trailers) [2009] ECR 519 at para 34.

[3] See eg J. Snell, ‘The Notion of Market Access: A Concept or a Slogan?’ (2010) 47(2) CMLRev 437 at p. 437.

[4] Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, Case C-384/93 Alpine Investments BV v Minister van Financiën [1995] ECR I-1141, Case C-415/93 Bosman [1995] ECR I-4921, Case C-190/98 Volker Graf v Filzmoser Maschinenbau GmbH [2000] ECR I-493.

[5] The phrase ‘outer limits’ is borrowed from C. Barnard and O. Odudu (Eds.) The Outer Limits of European Union Law (Oxford: Hart, 2009) .

[6] See eg Case C-442/02 CaixaBank France [2004] ECR I-8961, Case C-473/98 Toolex Alpha AB [2000] ECR I-5681, Case C-108/09 Ker-Optika, judgment of the Court (Third Chamber) of 2 December 2010 (nyr), Case C-565/08 Commission v. Italy (Maximum Fees for Lawyers), judgment of the Court (Grand Chamber) of 29 March 2011 (nyr) and Case C-443/10 Bonnarde, judgment of the Court (Fifth Chamber) of 6 October 2011 (nyr).

[7] Case C-367/98 Commission v Portugal (Golden Shares) [2002] ECR I-4731, Case C-463/00 Commission v Spain (Golden Shares) [2003] ECR I-4581, Case C-98/01 Commission v United Kingdom (Golden Shares) [2003] ECR I-4641 and Case C-171/08 Commission v. Portugal (Golden Shares), judgment of the Court (First Chamber) of 9 July 2010 (nyr). 

[8] For discussion of the market access test in EU law, see eg the Opinion of AG Jacobs in Case C-412/93 Leclerc-Siplec [1995] ECR I-179 at paras 38-49,  S. Weatherill, ‘After Keck: Some Thoughts on How to Clarify the Clarification’ (1996) 33(5) CMLRev 885,  P. Koutrakos, 'On Groceries, Alcohol and Olive Oil: More on Free Movement of Goods after Keck' (2001) 26 ELRev 391, C. Barnard, ‘Fitting the Remaining Pieces into the Goods and Services Jigsaw’ (2001) 26(1) ELRev 35, N. Nic Shuibhne, ‘The Free Movement of Goods and Article 28 EC: An Evolving Framework’ (2002) 27(4) ELRev 408, D. Doukas, ‘Untying the Market Access Knot: Advertising Restrictions and the Free Movement of Goods and Services’ (2006-2007) 9 CYELS 177, S. Enchelmaier, ‘The ECJ’s Recent Case Law on the Free Movement of Goods: Movement in all Sorts of Direction’ (2007) 26 YEL 115–156, P. Syrpis, EU Intervention in Domestic Labour Law (Oxford: OUP, 2007), D. Wilsher, ‘Does Keck Discrimination Make Any Sense? An Assessment of the Non-discrimination Principle within the European Single Market’ (2008) 33(1) ELRev 3, C. Barnard, ‘Restricting Restrictions: Lessons for the EU from the US?’ (2009) CLJ 68(3) 575, T. Horsley, ‘Anyone for Keck?’ (Case Comment) (2009) 46(6) CMLRev 2001, E. Spaventa, ‘Leaving Keck Behind? The Free Movement of Goods after the Rulings in Commission v. Italy and Mickelsson and Roos’ (2009) 36(4) ELRev 914, G. Davies, ‘Understanding Market Access: Exploring the Economic Rationality of Difference Conceptions of Free Movement Law’ (2010) 11(8) GLJ 671, M. Dougan ‘Legal Developments’ (2010) 48 (Supplement) JCMS 163, I. Lianos, ‘Efficient Restrictions of Trade in the EU Law of the Internal Market: Trust, Distrust and the Nature of Economic Integration’ CLGE Working Paper 10/2010, Snell note 3 and A. Tryfonidou, ‘Further Steps on the Road to Convergence amongst the Market Freedoms’ (2010) 35(1) ELRev 36.

[9] Enchelmaier note 8.

[10] Snell note 3 at p. 437.

[11] Case C-405/98 Gourmet International Products AB [2001] ECR I-1795 at para. 21.

[12] Eg Case C-171/08 Commission v. Portugal (Golden Shares) note 7 at para. 67.

[13] S. Enchelmaier, ‘Always at Your Service (Within Limits): The ECJ’s Case Law on Article 56 TFEU (2006/11)’ (2011) 36(5) ELRev 615 at p. 630.

[14] Ibid., at p. 633.

[15] G. Davies, Nationality Discrimination in the European Internal Market (The Hague: Kluwer, 2003) at p. 87.

[16] Joined Cases C-267/91 and C-268/91 Keck and Mithouard note 4 para. 16.

[17] Ibid., at para 17.

[18] Case C-565/08 Commission v. Italy (Maximum Fees for Lawyers) note 6 at para. 51.

[19] Lianos note 8 at pp 19-32.

[20] Ibid., at p. 20.

[21] Case C-20/03 Burmanjer [2005] ECR I-4133 at paras 30-31.

[22] Case C-376/98 Germany v. European Parliament and Council (Tobacco Advertising) [2000] ECR I-8419 at para. 83. See also thereafter to the same effect, eg Case C-491/01 British American Tobacco (Investments) Ltd [2002] ECR I-11453 at para. 179. Joined Cases C-154/04 and C-155/04 Alliance for Natural Health [2005] ECR I-6451 at paras 102 and 103 and Case C-58/08 Vodafone and Others, judgment of the Court (Grand Chamber) of 8 June 2010 (nyr) at paras 74-75. 

[23] Davies, ‘Understanding Market Access: Exploring the Economic Rationality of Difference Conceptions of Free Movement Law’ note 8 at p. 682.

[24] Ibid., at p. 703.

[25] See here also Snell, who takes the view that the access/exercise distinction is ‘a logical starting point for an autonomous EU law notion of market access.’ See Snell note 3 at p. 443.

[26]See the Opinion of AG Lenz in Case C-415/93 Bosman note 4 and the Opinion of AG Fennelly in Case C-190/98 Graf note 4.

[27] Case C155/09 Commission v. Greece (Transfer Taxes), judgment of the Court (First Chamber) of 20 January 2011 (nyr) at para. 35.

[28] Case C-464/02 Commission v. Denmark (Vehicle Registrations) [2005] ECR I-7929 at para. 37.

[29] Snell, note 3 at p. 469.

[30] D. Edward and N. Nic Shuibhne, ‘Continuity and Change in the Law Relating to Services’ in A. Arnull, P. Eeckhout & T. Tridimas (Eds.), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford: OUP, 2008) at p. 256.

[31] Case C-412/93 Leclerc-Siplec note 8 at para. 42.

[32] Case C-49/89 Corsica Ferries France [1989] ECR 4441 at para. 8 and Case C-212/06 Government of the French Community and Walloon Government v Flemish Government [2008] ECR I-1683 at para. 52 

[33] Opinion of AG Bot in Case C-110/05 Commission v. Italy (Motorcycle Trailers) note 2, esp. at para. 116.

[34] Ibid., at para. 117. However, at para. 113, the AG argues that the Court should, on a case-by-case basis: ‘specifically examine the extent of the obstacle to intra-Community trade caused by the measure limiting access to the market’ (this author’s emphasis),

[35] Case C-20/03 Burmanjer note 21at paras 30-31. See also to the same effect, eg Case C-134/03 Viacom Outdoor Srl v. Giotto Immobilier SARL [2005] ECR I-1167 at paras 36-37 and Joined Cases C-544/03 and C-545/03 Mobistar SA v Commune de Fléron (C-544/03) and Belgacom Mobile SA v Commune de Schaerbeek (C-545/03) [2005] ECR I-7723 at para. 31. 

[36] Case C-142/05 Åklagaren v. Percy Mickelsson and Joakim Roos [2009] ECR I-4273 at para. 26.

[37] Ibid., at para. 28.

[38] Doukas note 8 at p. 206.

[39] Case C‑211/08 Commission v. Spain (Hospital Treatment), judgment of the Court (Grand Chamber) of 15 June 2010 (nyr) at para. 72. See also earlier, eg Case C-69/88 Krantz GmbH [1990] ECR I-583 at para. 11, Case C-44/98 BASF [1998] ECR I-6269 at para. 21 and Case C-266/96 Corsica Ferries France SA [1998] ECR I-3949 at para. 31, Case 190/98 Graf note 4 at para. 25 and Case C‑291/09 Francesco Guarnieri & Cie, Judgment of the Court (First Chamber) of 7 April 2011 (nyr) at para. 17.  

[40] See here also Wilsher note 8 at p. 21.

[41] Doukas note 8 at p. 204. See also Barnard, ‘Restricting Restrictions’ note 8 at p. 576.

[42] The Opinion of AG Kokott in Case C-110/05 Commission v. Italy (Motorcycle Trailers) note 1 at para. 62.

[43] Ibid., at para. 63.

[44] Case E-16/10 Philip Morris Norway AS, judgment of the Court of 12 September 2011 (nyr).

[45] See, recently, eg Case C-382/08 Neukirchinger, judgment of the Court (Grand Chamber) of 25 January 2011 (nyr) at para. 41. See also earlier, eg Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089 at para. 10 and Case C‑153/02 Neri [2003] ECR I‑13555 at para. 35.

[46] Case C-565/08 Commission v. Italy (Maximum Fees for Lawyers) at note 6 at para. 30.

[47] Ibid., at para. 46. See also earlier, eg Case C‑442/02 CaixaBank France note 6 at para. 12 and Case C-518/06 Commission v Italy [2009] ECR I-3491 at para. 64.

[48] Ibid., at para. 50.

[49] Eg Case C-110/05 Commission v. Italy (Motorcycle Trailers) note 1 and Case C-142/05 Mickelsson and Roos note 36.

[50] Case C-108/09 Ker-Optika note 6 at para. 45.

[51] Case C-135/08 Rottman v Freistaat Bayern [2010] ECR I-1449, Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi, judgment of the Court (Grand Chamber) of 8th March 2011 (nyr), Case C-434/09 McCarthy v. Secretary of State for the Home Department, judgment of the Court (Third Chamber) 5th May 2011 (nyr) and Case C-434/10 Aladzhov, judgment of the Court (Fourth Chamber) of 17 November 2011.

[52] Case C-434/09 McCarthy note 51 at para. 56.

[53] Case C-434/10 Aladzhov note  51 at para. 27.

[54] E. Spaventa, Free Movement of Persons in the European Union: Barriers to Movement in the Constitutional Context (AH Alphen aan den Rijn: Kluwer, 2007) at p. xv (introductory remarks).  See here also the Opinion of AG Yves Bot in C-110/05 Commission v. Italy (Motorcycle Trailers) note 1 at para. 118 and, earlier, the Opinion of AG Poiares Maduro in Cases C-158/04 and C-159/04 Alfa Vita Vassilopoulos AE [2006] ECR I-8135 esp. at para. 51.

[55] Tryfonidou note 8 at p. 44.

[56] Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221 at para 12. See also thereafter for Art 45 TFEU: eg Case C-415/93 Bosman note 4at para. 96, Case C-109/04 Kranemann [2005] ECR I-2421 at para. 26 and Case C-208/05 ITC [2007] ECR I-181 at para. 31; for Art 49 TFEU eg Case C-318/05 Commission v Germany (School Fees) [2007] ECR I-6957 at para. 81, Case C-281/06 Jundt [2007] ECR I-12231 at para. 52 and Joined Cases C-155/08 and C-157/08 X and Passenheim-van Schoot [2009] ECR I-5093 at para. 32; for Art 56 TFEU eg Case C-158/96 Kohll [1998] ECR I-1931 at para. 33, Case C-136/00 Danner [2002] ECR I-8147 at para. 29 and Joined Cases C-544/03 and C-545/03 Mobistar and Belgacom Mobile note 35 at para. 30.  

[57] Eg Case C-171/08 Commission v. Portugal (Golden Shares) note 7 at para. 67.

[58] The Opinion of AG Jacobs in Case C-412/93 Leclerc-Siplec note 8 at para. 40.

[59] Spaventa note 8 at p. 925.

[60] Snell note 3 at p. 469.

[61] The Opinion of AG Ruiz Jarabo Colomer C-463/00 Commission v Spain [2003] ECR I- 4581 at para. 34.

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