Fostering Competition at the Expense of Free Movement? -An Analysis of the Loi Nome in the Light of Export Restrictions and Measures having Equivalent Effect

摘要

This article has examined the controversial Loi Nome in the light of the Article 35. Given that the law aims to favour national consumers, it is hard to exclude it from the scope of Article 35. However, one cannot totally leave aside the Court's recent case law indicating that the emphasis on the assessment whether a national measure restricts cross-border trade has underlined the effects of a measure, where the applications of a de minimis rule would gain a foothold. However, until otherwise proven, too much emphasis should not be placed (yet) on the developing case law. After all, measures favouring national production and treating foreign competitors less favourably are traditional textbook examples of (protectionist) market distortions and therefore measures that favour national production or consumers cannot be left outside the scope of free movement provisions. This is particularly the case given that the opening of the energy markets remains at an early stage compared to certain other economic sectors. In this respect, it is important to bear in mind that the process of liberalisation of the energy markets within the Union started relatively late because energy is one of those economic sectors that national governments regard as strategically important: energy law cannot be separated from energy policy.