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La notion de marché dans la jurisprudence de la Cour de justice des Communautés européennes

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A priest qualified as a service provider, a work of art considered as a commodity, education exclusively described as a prerequisite for vocational training. These three qualifications of the Court of Justice of the European Communities, among several hundred others, characterise the concept of market in Community case law. The market is not only a place where supply and demand meet. It is also a social link which presents relations between individuals as motivated primarily by gain and interest. It is therefore necessary to speak of a market society and not only of a market economy, since market ideology also guides a priori activities that are not essentially economic: religion, art, education.

All the definitions of words (worker, undertaking) or expressions (measure having equivalent effect, similar products) created by the ECJ have been listed in this book. This method makes it possible to identify fairly accurately the influence of the market on Community case law. The market certainly does not dictate all the decisions of the Community courts. From time to time, the latter may give precedence to social considerations, public order or considerations linked to European citizenship. But the market determines almost all the logic of Community case-law, in the sense that it creates almost only definitions obeying the market ideology. The judge creates a definition in order to use it in later cases. A solution based on a market definition therefore tends towards a solution of principle, whereas a non-market solution without a definition tends towards a solution of species.

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Francesco Martucci, La notion de marché dans la jurisprudence de la Cour de justice des Communautés européennes, September 2008, Concurrences N° 3-2008, Art. N° 20342, pp. 190-191

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