(post) Keck Case Law on the Freedom to Provide Services

(b) Liberalisation of Intra-Union TradeIt has been shown that the Court used the concept of “market hindrance” only in veryspecific situations. Moreover, there is, in my view, no doubt that the Court did not want tochange the underlying aim of Art 34 TFEU: the liberalisation of intra-Union trade.A.G. Kokott convincingly argued in Mickelsson and Roos that if “hindrance” of marketaccess is interpreted in a broad way, every restriction which leads to any decrease of sales– like the prohibition on driving cross-country vehicles off-road in forests – wouldconstitute a measure having equivalent effect. 74 Even though the Court did not expresslyfollow her argument and used the strong language of market “hindrance”, the decisionsdid not in substance depart from the A.G.`s opinion. First, as discussed above, the Courtonly decided that there was a breach of Art 34 TFEU in a very specific sort of cases(economic ban of the sale of a product). Second, the decisions did not include anysuggestion that the Court wanted to depart from its past rulings. On the contrary, thedecisions frequently refer to the established case law and do so in an affirmative manner.This question of consistency with past case law is closely connected to the question of thegeneral aim of Art 34 TFEU. As A.G. Tesauro famously asked in Hünermund:“Is Article 30 (now Art 34) of the Treaty a provision intended to liberalise intra-Community (now intra-Union) 75 trade or is it intended more generally to74Opinion of A.G. Kokott in <strong>Case</strong> C-142/05, Mickelsson and Roos, [2009] ECR I-4273, paras. 42-45.75With the Treaty of Lisbon the Union replaces and succeeds the Community (Art 1 TEU). See to that24