Chapter 2: Negative Law and Market Integration
MARKET INTEGRATION AND CONSUMER CHOICE The transformation of relatively small-scale national markets into a large single Community market will stimulate competition and induce producers to achieve maximum efficiency in order to protect, and a fortiori to expand, their market share. As a matter of economic theory, this intensification of competition should serve the consumer by increasing the available choice of goods and services, thereby inducing improvements in their quality and reduction in their price. The law is an instrument in this process. Article 28 (ex 30) EC serves to eliminate national measures that partition product markets. Article 49 (ex 59) EC fulfils the same function in the market for services. Removal of barriers to cross-border trade in goods and services stimulates competition and enhances consumer choice. The Treaty competition rules too have as one objective the prevention of practices that cause fragmentation of the market along national lines. In this sense, the law of market integration is itself a form of (indirect) consumer policy. The achievement of a common market will benefit the consumer, and accordingly the legal prohibition of national measures and practices that impede trade across borders is in the consumer interest. These prohibitions are frequently grouped together as ‘negative law’: law that forbids action hostile to the interpenetration of national markets. Consumer choice is an occasional explicit visitor to the Court’s judgments. The Court has declared that the legislation of a Member State must not ‘crystallize given consumer habits so as to consolidate an advantage acquired by...
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