¹ These are the Treaty rules concerning the free movement of goods, services, establishment, capital and workers. They are usually also known as fundamental freedoms, but I call them market or economic freedoms so as to expressly exclude from the scope of this paper European Citizenship, which deals with non-economic free movement.Google Scholar

² As has been noted elsewhere, these tests have normally been put forward from both a normative and a descriptive standpoint, assuming that they are not just normatively correct but also descriptively true. Part of what this paper attempts is to disentangle the normative justifications from the descriptive claims.Google Scholar

³ Consolidated Version of the Treaty on the Functioning of the European Union, Sep. 5, 2008, 2008 O.J. (C115) 47 [hereinafter TFEU].Google Scholar

⁴ See Avbelj, Matej, European Court of Justice and the Question of Value Choices 19 (N.Y.U. Law Sch. & The Jean Monnet Program, Working Paper No. 06/04, 2004).Google Scholar

⁵ See Eleanor Spaventa, Free Movement of Persons in the European Union 85 (2007).Google Scholar

⁶ See Bernard, Nicolas, Discrimination and Free Movement in EC Law, 45 Int'l & Comp. L.Q. 82, 102-08 (1996); see also id. at 85-86.Google Scholar

⁷ Integration theories distinguish between positive and negative integration. Positive integration is where common rules are provided by a higher authority to iron out regional and other inequalities. Negative integration refers to the removal of barriers between countries. The balance between these types of integration is a question which any trade system must face. See Joseph Weiler, Mutual Recognition, Functional Equivalence and Harmonization in the Evolution of the European Common Market and the WTO in The Principle of Mutual Recognition in the European Integration Process 25 (Fiorella Kostoris & Padoa Schioppa eds., 2005); see also Tamara Perisin, Free Movement of Goods and Limits of Regulatory Autonomy in the EU and WTO 9 (2008).Google Scholar

⁸ Miguel Poiares Maduro, We, the Court: The European Court of Justice and the European Economic Constitution 67 (1998).Google Scholar

⁹ See infra Part B.Google Scholar

¹⁰ See infra Part C.Google Scholar

¹¹ See infra Part D.Google Scholar

¹² See infra Part E.Google Scholar

¹³ See, e.g., Case C-438/05, Int'l Transp. Workers’ Fed'n and Finnish Seamen's Union v. Viking Line ABP and OU Viking Line Eesti, 2007 E.C.R. I-10779.Google Scholar

¹⁴ See Shaffer, Gregory, A Structural Theory of WTO Dispute Settlement: Why Institutional Choice Lies at the Centre of the GMO Case, 41 N.Y.U. J. Int'l L. & Pol. 1, 4 (2008).Google Scholar

¹⁵ See Avbelj, supra note 4, at 19. Evidence that litigation and negative integration led to an increase in EU legislation, presumably to replace regulatory holes left in the Member States by the negative integration that preceded it, has been empirically observed. See Alec Stone Sweet & Neil Fligstein, Institutionalizing the Treaty of Rome, in The Institutionalization of Europe 45–53 (Alec Stone Sweet et al. eds., 2001).Google Scholar

¹⁶ See Azoulai, Loïc, The Court of Justice and the Social Market Economy: The Emergence of an Ideal and the Conditions for Its Realization, 45 Common Mkt. L. Rev. 1335, 1341 (2008); see also Allan Erbsen, Horizontal Federalism, 93 Minn. L. Rev. 493, 494-502 (2008).Google Scholar

¹⁷ See Davies, Gareth, Can Selling Arrangements Be Harmonised?, 30 E.L. Rev. 370, 375–78 (2005). This is also apparent from Case C-380/03, Germany v. Parliament, 2006 E.C.R. I-11573 [hereinafter Tobacco Advertising II].Google Scholar

¹⁸ Consolidated Version of the Treaty on European Union, Mar. 30, 2010, 2010 O.J. (C83) 1.Google Scholar

¹⁹ See Weatherill, Stephen, Better Competence Monitoring, 30 E.L. Rev 23, 25–28 (2005); see also Perisin, supra note 7, at 91-108. See also Case C-376/98, Germany v. Parliament, 2000 E.C.R. I-8419 [hereinafter Tobacco Advertising I], Case C-491/01, The Queen v. Sec'y of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd, 2002 E.C.R. I-11543 [hereinafter British American Tobacco]; Case C-210/03 The Queen v. Sec'y of State for Health, ex parte Swedish Match, 2004 E.C.R. I-11893 [hereinafter Swedish Match]; Tobacco Advertising II; Case C-58/08 Vodafone Ltd and Others v. Sec'y of State for Business, Enterprise, and Regulatory Reform, 2010 E.C.R. I-04999 [hereinafter Vodafone].Google Scholar

²⁰ This explains why there is no equivalence between a test where a market freedom would have a vast scope and be subject to light review at the justification stage, and a test imposing a stricter scope for the market freedoms but applying a stricter review at justification stage, even when the final decision of the cases by the Court would be the same.Google Scholar

²¹ See Schillig, Michael, The Interpretation of European Private Law in the Light of Market Freedoms and EU Fundamental Rights, 15 Maastricht J. Eur. and Comp. L. 285, 296–97 (2008). In practice, Union legislation is seldom reviewed—and even more seldom invalidated—under the market freedoms. See Joined Cases 80 and 81/77, Commissionnaires Réunis v. Receveur des douanes, 1978 E.C.R. 927; Case 41/84, Pinna v. Caisse d’ Allocations Familiales de la Savoie, 1986 E.C.R. 1 [hereinafter Pinna]; Case 20/85 Roviello v. Landesversicherungsanstalt Schwaben, 1988 E.C.R. 2805 [hereinafter Roviello]; Piet Eeckhout, The European Court of Law and the Legislature, 18 Y.B. Eur. L. 1, 12-14 (1998). Nonetheless, Union legislation can be indirectly reviewed by the Court assessing whether a national measure compliant with Union legislation still infringes upon the fundamental Treaty provisions. See Case C-208/07, Petra von Chamier-Glisczinski v. Deutsche Angestellten-Krankenkasse, 2009 E.C.R. I-06095 [hereinafter Chamier-Glisczinski].Google Scholar

²² See Sweet, Alec Stone & Caporaso, James, From Free Trade to Supranational Polity: The European Court and Integration, in European Integration and Supranational Governance 128 (Wayne Sandholtz & Alec Stone Sweet eds., 1998).Google Scholar

²³ This might paradoxically lead to greater formal regulation, since as the social distance and distrust between regulators and regulated actors in liberalized markets increases, laws and regulatory processes tend to become more formal, transparent, and legalistic. See Daniel Kelemen, Eurolegalism: The Transformation of Law and Regulation in the European Union 23 (2011).Google Scholar

²⁴ This theory originates from Charles Tiebout, A Pure Theory of Local Expenditures 64 J. Pol. Econ. 416 (1956). See Simon Deakin, Reflexive Governance and European Company Law, 15 Eur. L.J. 224, 231 (2009) (arguing that this pure theory is too abstract even for the U.S. reality).Google Scholar

²⁵ See Sun, Jeanne-Mey & Pelkmans, Jacques, Regulatory Competition in the Single Market, 33 J. Common Market Studs. 67, 69-77 (1995); Barnard, Catherine & Deakin, Simon, Market Access and Regulatory Competition (N.Y.U. Law School and The Jean Monnet Working Program, Working Paper No. 9/01, 2-4, 2001). On the origin of these concepts, see Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (1970).Google Scholar

²⁶ This is an empirically debatable question, particularly in the EU context. See, e.g., Fritz Wilhelm Scharpf, Governing in Europe: Effective and Democratic? 86–101 (1999); Catherine Barnard, Social Dumping and the Race to the Bottom: Some Lessons for the European Union from Delaware?, 25 Eur. L. Rev. 57 (2000).Google Scholar

²⁷ See Gormley, Laurence W., Actually or Potentially, Directly or Indirectly? Obstacles to the Free Movement of Goods, 9 Y.B. Eur. L. 197 (1989); Anthony Arnull, What Shall We Do on a Sunday?, 16 Eur. L. Rev. 112 (1991); Wils, Wouter, The Search for a Rule in Article 30 EEC: Much Ado About Nothing?, 18 Eur.L. Rev. 475 (1993).Google Scholar

²⁸ See Marenco, Gustavo, Pour une Interprétation Traditionelle de la Notion de Mesure d'Effet Equivalent à une Restriction Quantitative, 20 Cahiers de Droit Européen 291 (1984); Bernard, supra note 6. It should be noted that this perspective also overlaps with debates on the value of judicial review as opposed to legislative autonomy. I thank Damian Chalmers for his comments on this point.Google Scholar

²⁹ A question first faced by the Court in Advocate General Tesauro's Opinion in Case C-292/92, Hünermund v. Landesapothekerkammer, 1993 E.C.R. I-6787 [hereinafter Hünermund]. On broad tests leading to deregulation, see Spaventa, supra note 5. On the debate, see Wolf Sauter & Harm Schepel, State and Market in European Union Law: The Public and Private Spheres of the Internal Market Before the EU Courts 4-15 (2009).Google Scholar

³⁰ Following the express disavowal of ordoliberal views advocating deregulation and economic freedoms as normative goals of the market freedoms in Advocate General Tesauro's Opinion in Hünermund and by the Court in Joined Cases C-267/91 and 268/91, Criminal Proceedings Against Keck and Mithouard, 1993 E.C.R. I-6097 [hereinafter Keck].Google Scholar

³¹ See Giandomenico Majone, Dilemmas of European Integration: The Ambiguities and Pitfalls of Integration by Stealth 145 (2005); Jukka Snell, Goods and Services in EC Law: A Study of the Relationship Between the Freedoms 38-40 (2002).Google Scholar

³² Although some authors have pointed to discrepancies between economic models and empirical results, see Sun and Pelkmans, supra note 25, at 83–85.Google Scholar

³³ These can traditionally be distinguished among externalities, market power, and asymmetric information. See John Kay & John Vickers, Regulatory Reform: An Appraisal in Deregulation or Re-regulation, 225–30 (Giandomenico Majone ed., 1990); Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State, 47–73 (1990); Anthony I. Ogus, Regulation: Legal Form and Economic Theory 30-46 (2004); Andrew Johnston & Phil Syrpis, Regulatory Competition in European Company Law After Cartesio, 34 Eur. L. Rev. 378, 392 (2009).Google Scholar

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³⁵ Deakin, Simon, Legal Diversity and Regulatory Competition: Which Model for Europe? 12 Eur. L.J. 440, 441–43 (2006); Neil Fligstein & Alec Stone Sweet, Constructing Polities and Markets: An Institutionalist Account of European Integration, 107 Am. J. Soc. 1206, 1312 (2002).Google Scholar

³⁶ Maduro, supra note 8, at 108-49. See also Alan O. Sykes, The (Limited) Role of Regulatory Harmonization in International Goods and Services, 2 J. Int'l Econ. L. 49 (1999) (distinguishing between models advancing regulatory harmonization, mutual recognition and policed de-centralization in international economic law); Armin von Bogdandy, Legitimacy of International Economic Governance, in International Economic Governance and Non-Economic Concerns (Stefan Griller ed., 2003) (identifying a federal model, a coordinated interdependence model, and a liberal model).Google Scholar

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³⁸ Avbelj, supra note 4, at 19.Google Scholar

³⁹ Bernard, supra note 6, at 102-08.Google Scholar

⁴⁰ This version of the model is not developed by Maduro, but I add it here because it helps fill what I perceive to be a gap in his taxonomy, which seems to result from an assumption that regulatory competition will lead to a race-to-the-bottom and thereby equates it with deregulation.Google Scholar

⁴¹ See Spaventa, supra note 5, at 85. On the influence of ordoliberals at the inception of the European project, see Miguel Poiares Maduro, Reforming the Market or the State? Article 30 and the European Constitution: Economic Freedom and Political Rights, 3 Eur. L.J. 55, 55–56 (1997); David J. Gerber, Constitutionalizing the Economy: German Neo-Liberalism, Competition Law and the “New” Europe, 42 Am. J. Comp. L. 25 (1994).Google Scholar

⁴² See Bernard, supra note 6, at 102-08; Spaventa, supra note 5, at 85-86. But see Maduro, supra note 8, at 109 (arguing that it tends towards a broad test).Google Scholar

⁴³ Single European Act, Feb. 17, 1986, 1987 O.J. (L169) 1, 25 I.L.M. 506.Google Scholar

⁴⁴ See Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein, 1979 E.C.R. 649 [hereinafter Cassis de Dijon].Google Scholar

⁴⁵ See id. at para. 8.Google Scholar

⁴⁶ See Nicolaïdis, Kalypso, Globalization with Human Faces: Managed Mutual Recognition and the Free Movement of Professionals, in The Principle of Mutual Recognition in the European Integration Process 133 (Fiorella Kostoris & Padoa Schioppa eds., 2005).Google Scholar

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⁴⁹ On similar terms concerning international economic laws, see Alan O. Sykes, Regulatory Competition or Regulatory Harmonization? A Silly Question?, 3 J. Int'l Econ. L. 257 (2000).Google Scholar

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⁵¹ Douglass C. North, Institutions, Institutional Change, and Economic Performance 47 (1990). In effect, most systems require much more than this. See Ogus, supra note 33, at 16–28. On the other hand, in an ideal neoclassical world without information costs, rules would be largely irrelevant, as per the Coase Theorem.Google Scholar

⁵² Deakin, supra note 35, at 440; see also Neil Fligstein, Markets as Politics, 61 Am. Soc. Rev. 656, 658 (1996).Google Scholar

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⁶⁰ This seems to be because this model expressly defends the maintenance of the maximum State autonomy possible, and the different normative debates focus precisely on the impact of negative integration on State autonomy.Google Scholar

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⁶² This is related to the indeterminacy of any concept. As remarked by Joseph Raz, explanations such as normative theories may strive to replicate the indeterminacies of the concepts they explain, but it is almost impossible to achieve a perfect replication. See Joseph Raz, The Problem of Authority: Revisiting the Service Conception, 90 Minn. L. Rev. 1003 (2006).Google Scholar

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⁶⁴ This would explain the recent dearth of normative arguments for using the market freedoms as de-regulatory tools compared to the pre-Maastricht era. See, e.g., Manfred Streit & Werner Mussler, The Economic Constitution of the European Community, 1 Eur. L.J. 5 (1995). On the impact of Keck, see Case C-292/92, Hünermund v. Landesapothekerkammer Baden-Wurttemberg, 1993 E.C.R. I-6787 n.29 (Advocate General Tesauro's Opinion); infra notes 108–11.Google Scholar

⁶⁵ In using the concept of institutional consideration, I follow Howard B. Kaplan, who argues that the measure of a concept is not its truth, but its usefulness in relating data to each other and in orienting the researcher to profitable modes of gathering and organizing the data. See Howard B. Kaplan, The Concept of Institution: A Review, Evaluation, and Suggested Research Procedure, 29 Soc. Forces 176 (1960).Google Scholar

⁶⁶ I here follow the systematization developed by Sweet, Sandholtz and Fligstein. See Sweet & Fligstein, supra note 15, at 6–8.Google Scholar

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⁷⁵ Such as withdrawing resources, jurisdiction stripping, court packing, and judicial selection and reappointment, which all face the same difficulties as those inherent to overriding Court decisions. See R. Daniel Kelemen, The Political Foundations of Judicial Independence in the European Union, 19 J. Eur. Pub. Pol'y 43 (2012).Google Scholar

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⁸⁷ Understandable, since both mutual recognition and the economic due-process clause originated in the same two cases. See Case 8/74, Procureur du Roi v. Benoît and Gustave Dassonville, 1974 E.C.R. 837; Cassis de Dijon, 1979 E.C.R. 649.Google Scholar

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⁹² On how the Court, even though not de jure bound by precedent, mainly acts as if it was in practice, see Anthony Arnull, The European Union and Its Court of Justice 627 (2006).Google Scholar

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⁹⁶ In the US context, see Barry Friedman & Erin F. Delaney, Becoming Supreme: The Federal Foundation of Judicial Supremacy, 111 Colum. L. Rev. 1137, 1188-92 (2011).Google Scholar

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¹⁰⁴ On the fitness of these phenomena to describe the evolution of the case law on the market freedoms, in particular the free movement of goods, see Sweet, supra note 83, at 118-44.Google Scholar

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¹⁰⁶ See, famously, Communication from the Commission concerning the consequences of the judgment given by the Court of Justice on 20 February 1979 in Cassis de Dijon and the Commission's White Paper, Completing the Internal Market (1985)Google Scholar

¹⁰⁷ For a famous example, see Case 178/84, Commission v. Germany, 1987 E.C.R. 1227, the so-called “German beer purity law” case.Google Scholar

¹⁰⁸ Joined Cases 60/84 and 61/84, Cinéthèque SA v. Federation Nationale des Cinemas Francaises, 1985 E.C.R. 2605, see also cases cited supra note 89.Google Scholar

¹⁰⁹ See Case 145/88, Torfaen Borough Council, 1989 E.C.R. 765, para. 12.Google Scholar

¹¹⁰ As acknowledged by the Court in Keck, 1993 E.C.R. I-6097 at paras. 13–14.Google Scholar

¹¹¹ Case C-384/93, Alpine Investments, 1995 E.C.R. I-01141.Google Scholar

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¹²² See id. at para. 16.Google Scholar

¹²³ See id. at para. 17.Google Scholar

¹²⁴ The Court stated that “[i]n view of the increasing tendency of traders to invoke Article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States, the Court considers it necessary to re-examine and clarify its case law on this matter,” before going on to decide that” contrary to what has previously been decided.” See id. at paras. 14, 16.Google Scholar

¹²⁵ Arguably, the best (anecdotal) evidence that all of these elements had a role to play is that the Court reacted to increased academic and judicial criticism about its case law, particularly in light of being flooded with identical cases during the Sunday Trading saga, by adopting a theory which was advanced in an academic journal by one of the Commission's agents with the Court while justifying its actions as needed to check the amount of cases reaching its docket. To verify this empirically would be, assuming it is possible, outside of the scope of this study.Google Scholar

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¹³² See Case C-114/96, Criminal Proceedings Against Kieffer and Thill, 1997 E.C.R. I-3629.Google Scholar

¹³³ See Case C-265/95, Comm'n v. France, 1997 E.C.R. I-6959.Google Scholar

¹³⁴ See Case C-189/95, Criminal Proceedings Against Franzén, 1997 E.C.R. I-5909.Google Scholar

¹³⁵ See Case C-110/05, Comm'n v. Italy, 2009 E.C.R. I-519; Case C-142/05, Mickelsson and Roos, 2009 E.C.R. I-4273; Case C-108/09, Ker-Optika bt v. ÀNTSZ Dél-dunántúli Regionális Intézete, 2010 E.C.R. I-_____; see also Niamh Nic Shuibhne, The Free Movement of Goods and Article 28 EC: An Evolving Framework, 27 Eur. L. Rev. 408, 411 (2002); Jukka Snell, The Notion of Market Access: A Concept or a Slogan?, 47 Common Mkt. L. Rev. 437, 460 (2010). For a more extensive discussion of the use of market access in what concerns goods, see my Pedro Caro de Sousa, Through Contact Lenses, Darkly: Is Identifying Restrictions to Free Movement Harder Than Meets the Eye? Comment on Ker-Optika, 37 Eur. L. Rev. 79 (2012).Google Scholar

¹³⁶ Treaty on the Functioning of the European Union, art. 26(2) December 2007, 2010 O.J. (C083) 1 (“The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.”).Google Scholar

¹³⁷ See Mortelmans, Kamiel, The Common Market, the Internal Market and the Single Market: What's in a Market?, 35 Common Mkt. L. Rev. 101, 118 (1998).Google Scholar

¹³⁸ I thank Stephen Weatherill for having pointed this out to me.Google Scholar

¹³⁹ See Maduro, supra note 8.Google Scholar

¹⁴⁰ In the context of the Union, however, it is doubtful whether such a distinction should not be granted to the European Parliament.Google Scholar