The EU Free Movement as Seen Through the Lens of Competition Law

Abstract

This paper aims to unify the law on the EU free movement of goods, particularly access to relevant markets, and EU competition law on the conduct of economic operators, i.e. traders on such markets. It seeks to ascertain the historical origins and inspirational sources of EU free movement in the wider context of EU trade law. The paper questions the goals of free movement law, which complement the goals of competition law. A re-organisation of precedent rulings on free movement will follow in accordance with the economic policy criteria devised by competition law. Free movement law is challenged through the lens of competition law to determine the extent to which these rulings construct a unified picture of EU consumer and fair competition law. The paper argues that, despite its unpredictable evolution, the judicial review of EU free movement law undertaken by the ECJ has successfully developed a sui generis body of EU consumer and fair competition law. This judicial review pragmatically shaped the internal market law during its formative and successive stages of harmonisation. It challenged administrative measures pertaining to key areas of consumer choice, traders’ freedom of action, and the wider public policy or ‘non-competition’ considerations, i.e. the protection of the environment and culture. The perception of unconstitutionality given the ECJ’s perceived intrusiveness in the area of EU private law is crucial in determining the extent to which the Court exercises the judicial function of a Supreme Court in matters of supra-national private law. In reality, the density of precedent rulings and the lack of a coherently unified framework of analysis of the emergent case law obscured the role of the Court as an instrument to ‘disempower’ the EU citizen, since national legislation and measures taken by public administrations had to be challenged. In conclusion, rules that had adverse effects on consumers and traders have been eradicated by the ECJ, obfuscating the national autonomy governing EU private economic law.