@article{2024:zelger:a_recap_30,
title = {A Recap 30 Years after Keck: Unbridgeable Differences or Recurring Tales in EU Market Jurisprudence?},
year = {2024},
note = {More than 30 years ago, the European Court of Justice (“ECJ” or
“Court”) adopted its famous decision in Keck. While the debate
about the state of market jurisprudence has not caught much attention
in recent years, discrepancies between Keck and subsequent case law,
particularly the so-called market access test as arguably most
prominently fleshed out by the ECJ in its 2009 judgment in Italian
Trailers, remain. Both strands of case law have been subject to
criticism (notwithstanding proponents on each side, of course). Put
oversimplistically, it has been argued that Keck needs to be abandoned
or its scope of application expanded, while Italian Trailers has been
welcomed or criticised for over-expanding the notion of what
constitutes a restriction of the free movement of goods rules, lacking
contours, a nuanced legal test, and conferring vast supervisory power
to the ECJ over national law. While acknowledging the advantages of
both strands of case law, this article proposes a unified legal test
that converges the two. In light of the restriction-justification
approach that, as will be shown, currently predominates the free
movement case law of the ECJ (while Keck has lost importance and even
been applied inconclusively) this seems necessary to eliminate the
arbitrariness inherent to the latter approach. Moreover, this approach
would arguably render decisional outcomes more comprehensible and
thus, from the perspective of a federal, multilevel political system
with its shared competences, merit traceability and increased
acceptance.},
journal = {ZEuS Zeitschrift für Europarechtliche Studien},
pages = {305--348},
author = {Zelger, Bernadette},
volume = {27},
number = {3}
}