The notion of market access: a concept or a slogan?

The internal market case law of the European Court of Justice often invokes the term market access, and recently the notion has been given a key role in defining the reach of the four freedoms of the TFE – free movement of goods, persons, services, and capital. Unfortunately the precise content of the term remains elusive. The use of the notion in (European Union) competition law and WTO law does not provide reliable guidance, due to the fundamentally different contexts. Further, it is not clear what the normative justification for distinguishing formally between access and exercise or direct and indirect effects is. The case law also lacks coherence. In some decisions the Court indicates that the impact on market access is the decisive criterion for the application of free movement provisions, but in others it is prepared to find a restriction or dismiss a case without even mentioning the term. In its most recent rulings the Court has focused on the magnitude of the effects of national measures (which erect barriers to entry), yet it has consistently rejected arguments based on the minor or slight impact of national rules. The article argues that, when pressed, the notion of market access collapses into economic freedom or anti-protectionism, and obscures the need to choose between the competing paradigms of free movement law.