The incoming tide of an effects-based approach in EU law : a comparison between the competition and free movement case law

The use of an economics, effects-based, approach in EU Law is normally understood within the context of the enforcement of the EU Competition provisions. It embodies the post-Modernisation shift from a formalistic application of these provisions, and particularly of Article 102 TFEU, to a method of analysis that focuses on the capability of a certain behaviour to harm competition using market dynamics and defined economic tools. This paper draws comparisons between this specialised approach and the interpretation increasingly followed by the Court of Justice in the field of free movement of goods and persons. There, the Court has moved from using a formalistic analytical framework based on the existence or absence of discrimination to one that considers the effects of a measure on the demand side of the market or in preventing or limiting access to other markets by EU migrants. The paper outlines the clear and important differences between the fields of free movement and competition law but also seeks to ascertain the existence of parallel analytical trends and the implications of these for the direction of the Single Market. It considers two themes. First, it examines the shift from a predominantly formalistic approach to specialised and general effects-based approaches, respectively, in the competition and free movement case law. Second, as these analytical frameworks have developed and their implications have become clearer, it identifies the emergence of trends in both areas towards a refinement or revision of their parameters.