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Durham University

Durham Law School

Staff profile

Publication details for Dr Barend van Leeuwen

Van Leeuwen, Barend (2019). Market Access, The New Approach And Private Law. European Review of Private Law 27(2): 269-292.

Author(s) from Durham


In James Elliott and Schmitt, the ECJ refused to extend the scope of
application of European standards adopted under the New Approach to private law
disputes. This article argues that the ECJ’s judgments were based on a static interpretation
of the concept of market access, which is inconsistent with how the concept
of market access has been developed in free movement of goods cases under Article 34
TFEU. It argues for a more consistent and dynamic interpretation of market access.
Such an approach would bring private liability cases like James Elliott and Schmitt
within the scope of application of EU law. As a result, the conditions and requirements
for liability in private law could be reviewed by the ECJ. If the ECJ is not willing to
extend the scope of application of the New Approach in this way, the EU legislature
should include rules on private liability in the directives adopted under the New