Internet Based Trade and the Court of Justice: Different Sector, Different Attitude

Abstract:     
This paper will also be published in the European Journal of Risk Regulation, in the first issue of 2011. With increasing reliance by suppliers and consumers of goods and services on the internet as a means of doing business there has been a rise in cross-border trade. Inevitably this has led to clashes between suppliers seeking to rely upon the free movement principles which underpin the European Union’s internal market and the competence of Member States to restrict cross-border movement for reasons pertaining to consumer protection. In this paper consumer protection is understood as incorporating regulatory approaches intended to protect consumers from risk. Member States enjoy a margin of discretion when seeking to uphold restrictive measures, subject to oversight by the Court of Justice through the preliminary reference procedure. However, when responses of the Court to restrictive measures in different sectors are compared a considerable chasm emerges in the degree to which the Court critiques national law. Such a divergence is highly apparent when the case-law surrounding online gambling is compared with that relating to the online sale of medical devices and medicinal products. This paper illustrates how the Court has been far more critical of measures intended to protect consumers from exposure to risk arising from online gambling compared to the online sale of medical devices and medicinal products.

Keywords: European Court of Justice, consumer protection, E-commerce, free movement of services, margin of discretion, necessity test, online gambling, online pharmacies, risk regulation

JEL Classification: F13, I18, K20, L81, L83, O38

Accepted Paper Series