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Market Access, The New Approach And Private Law

Van Leeuwen, Barend

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In James Elliott and Schmitt, the ECJ refused to extend the scope of application of European standards adopted under the New Approach to private law disputes. This article argues that the ECJ’s judgments were based on a static interpretation of the concept of market access, which is inconsistent with how the concept of market access has been developed in free movement of goods cases under Article 34 TFEU. It argues for a more consistent and dynamic interpretation of market access. Such an approach would bring private liability cases like James Elliott and Schmitt within the scope of application of EU law. As a result, the conditions and requirements for liability in private law could be reviewed by the ECJ. If the ECJ is not willing to extend the scope of application of the New Approach in this way, the EU legislature should include rules on private liability in the directives adopted under the New Approach.


Van Leeuwen, B. (2019). Market Access, The New Approach And Private Law. European Review of Private Law, 27(2), 269-292

Journal Article Type Article
Acceptance Date Feb 12, 2019
Online Publication Date Apr 8, 2019
Publication Date Apr 1, 2019
Deposit Date Feb 12, 2019
Publicly Available Date Oct 8, 2019
Journal European Review of Private Law
Print ISSN 0928-9801
Publisher Kluwer Law International
Peer Reviewed Peer Reviewed
Volume 27
Issue 2
Pages 269-292
Publisher URL


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