Understanding market access: exploring the economic rationality of different conceptions of free movement law

There has been much discussion of the proper scope of the European Treaty articles on free movement. Central to this discussion has been a debate about the best concept around which to build free movement law, and in this debate “discrimination” has been opposed to “market access.” It is, however, the central thesis of this paper that the opposition is largely false. In general, measures which affect all market actors equally do not, as a matter of economic fact, impede market access. The non-discriminatory measures which impede market access, which some have felt it so important to bring within the Treaty, are therefore more mythical than real. This argument is made with reference to competition law and theory concerning barriers to market entry.