Market Access, The New Approach And Private Law

Van Leeuwen, Barend

Abstract

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.

Citation

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: http://www.kluwerlawonline.com/toc.php?pubcode=ERPL