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Davies, Gareth --- "Between market access and discrimination: free movement as a right to fair conditions of competition" [2017] ELECD 265; in Koutrakos, Panos; Snell, Jukka (eds), "Research Handbook on the Law of the EU’s Internal Market" (Edward Elgar Publishing, 2017) 13

Book Title: Research Handbook on the Law of the EU’s Internal Market

Editor(s): Koutrakos, Panos; Snell, Jukka

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783478095

Section: Chapter 2

Section Title: Between market access and discrimination: free movement as a right to fair conditions of competition

Author(s): Davies, Gareth

Number of pages: 16

Abstract/Description:

Discussion about the extent of free movement law has been lively and continuous more or less since its beginning. A striking factor in this discussion is the consistency of the issues and the positions taken. A core question is always ‘how far should the Court go?’, usually meaning ‘when should national measures be treated as restrictions on movement?’ One view is that this should be the case only when foreign economic actors are placed at a disadvantage compared to national economic actors, so that the core of free movement can be described in terms of non-discrimination, disparate impact, or anti-protectionism. Another view is that restrictions should be found whenever a foreign actor experiences an unwelcome regulatory hindrance to their economic activity, a view which usually puts market access as the central slogan of the law, or sometimes the beguilingly simple ‘obstacles to trade’. This is usually considered to be a broader or more encompassing prohibition than mere non-discrimination. Yet while many scholars have taken strong normative standpoints on this principled policy issue, an equally lively stream of writing is that which primarily attempts to unravel what the law actually is. There is a consensus among scholars that the case law lacks clarity and certainty, but nevertheless a long tradition of attempts to unpack and expose the judicial preferences trapped between the terse and often opaque lines of the judgments. This chapter, with some embarrassment, adds to that tradition.