The Marks & Spencer case - the open issues following the ECJ's final word

The author analyses the long-awaited and somewhat surprising decision of the European Court of Justice (ECJ) in the Marks & Spencer case. Specifically, he considers the issues of "comparable situation" "justification" and "proportionality" regarding the case. The author concludes by regretting that the ECJ did not make explicit its intention to change its case law and did not take the opportunity to state that the real argument for the Court was, apparently, the budgetary restraints of the Member States.