De minimis meets “market access”: Transformations in the substance – and the syntax – of EU free movement law?

Publishers Abstract:
The article examines whether the ECJ has used, or could use, de minimis test(s) in free movement law as a means of limiting the scope of prima facie prohibited non-discriminatory measures. The scrutiny is framed against the Court's recent case law, where the notion of market access has become important. Market access may in fact be interpreted with reference to de minimis tests and its relationship with such tests - systemized here as magnitude, causality and probability thresholds - reveals interesting parallels. Combinations of de minimis tests may influence the content of free movement law and perhaps even lead to changes in the prohibition-justification syntax.

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