Discrimination and beyond in European Economic and Social Law

Abstract

In practice and comments on EU internal market law, the Court and commentators often refer to the notion of ‘market access’ as if it is the keystone of the EU integration process and as if this would go beyond anti-discrimination rules. However, one cannot go beyond ‘non-discrimination without entering the sphere of ‘positive action. Yet, there is no legal, political or economic basis for positive action in the internal market context. A comparison with social law, where discrimination is a more developed concept, shows that the arguments for positive action are inappropriate to the economic context and that what are sometimes described as non-discriminatory rules constituting a restriction to free movement in fact usually constitute indirect discrimination. As for market access, economic theory tells us that the only rules that inhibit market access are those that have a discriminatory component. Thus anti-discrimination continues to be the essence of market-making and of market access and talk of ‘going beyond’ it is mere confusion. The goal and the logic of internal market law is substantive equality for all market actors – similarly to social law, from which it can learn much about the relevant concepts.