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

European Law Review, Issue 1 February 2012, p.79

11 Pages Posted: 12 Dec 2013 Last revised: 14 Apr 2021

See all articles by Pedro Caro de Sousa

Pedro Caro de Sousa

Organization for Economic Co-Operation and Development (OECD)

Date Written: 2011

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

Suggested Citation

Caro de Sousa, Pedro, Through Contact Lenses, Darkly: Is Identifying Restrictions to Free Movement Harder Than Meets the Eye? Comment on Ker-Optika (2011). European Law Review, Issue 1 February 2012, p.79, Available at SSRN: https://ssrn.com/abstract=2365976 or http://dx.doi.org/10.2139/ssrn.2365976

Pedro Caro de Sousa (Contact Author)

Organization for Economic Co-Operation and Development (OECD) ( email )

2 rue Andre Pascal
Paris Cedex 16, 75775
France

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