Through Contact Lenses, Darkly: Is Identifying Restrictions to Free Movement Harder Than Meets the Eye? Comment on Ker-Optika

Abstract

This article focuses on how the Court of Justice of the European Union addressed the question of whether a prohibition on selling contact lenses via the internet constitutes a restriction to the free movement of goods. It will be submitted that the Court’s reasoning needlessly conflates the Keck typology with market access, and that this conflation is partially the result of both of these approaches being normatively under-theorised. It will be further submitted that an approach that acknowledges this under-theorisation as a characteristic of judicial tests, while recognising that each test has specific normative and institutional implications, will be better able to make sense of the law. Finally, it will be suggested how such an approach might look like in practice.

Keywords: EU Law, Free Movement, Goods, Restriction, Negative Integration

JEL Classification: K19, K20