Bulletin n. 2/2010
October 2010
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Davies Gareth
    Understanding Market Access: Exploring the Economic Rationality of Different Conceptions of Free Movement Law
    in German Law Journal , Vol. 11, n. 8 ,  2010 ,  671-704
    There has been much discussion of the proper scope of the European Treaty articles on free movement. Central to this discussion has been a debate about the best concept around which to build free movement law, and in this debate “discrimination” has been opposed to “market access.” It is, however, the central thesis of this paper that the opposition is largely false. In general, measures which affect all market actors equally do not, as a matter of economic fact, impede market access. The non-discriminatory measures which impede market access, which some have felt it so important to bring within the Treaty, are therefore more mythical than real. This argument is made with reference to competition law and theory concerning barriers to market entry. A secondary thesis of this paper is that the Court of Justice appears to understand this. While its choice of language when interpreting the free movement articles is variable and sometimes inconsistent, and does not make entirely clear what it believes the scope of these articles to be, the types of measures that it has found to be outside the Treaty are those which impose an equal burden on all products and actors in the relevant market, while the types of measures which it has found to be within the Treaty are those which impose greater burdens on a selection of products or actors in the relevant market. Whether a measure is fully equal in its market effects or in some sense selective appears to be the crucial factor in categorizing it as a restriction on cross-border trade or not. The aim of the paper is to explore the way that different kinds of market-regulating measures actually work, and develop an economically coherent categorization which can be used as a... Full text available at: http://www.germanlawjournal.com/pdfs/Vol11-No8/PDF_Vol_11_No_08_671-704_Articles_Davies%20FINAL.pdf
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