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This chapter continues with the discussion of market holism. Its development is traced back to a series of creative misreadings of the existing case law. It explains how the ECJ's new theory of competence allocation overrode prior constraints, and it explores the horizontal and vertical dimensions of Union competence. Vertically, market holism can be tied to interferences with fundamental freedoms; horizontally, it promises to fuse the removal of obstacles and the elimination of distortion of competition into a single basis of Union power. The chapter discusses alternative renditions of these powers, and concludes that market holism appears to be most plausible where the Union has committed itself legally to abide by a high standard of protection, such as in the areas of health, consumer, and environmental protection.

This chapter briefly recalls to mind the ominous problem of curbing the growth of Union competence. It discusses the cases recently decided by the ECJ concerning vertical competence allocation, in this connection, reconstructing the new theory of Union jurisdiction manifest in these cases under the name of ‘market holism’ and contrasting it with the most obvious alternative — market liberalism. Market holism comprises the following pair of beliefs. According to the first belief, the internal market is not merely a specific segment of public policy for which the Union happens to have been accorded harmonization competence. Rather, the internal market is a regulatory space permeating the totality of public policy subject to certain conditions. According to the second belief, the definition of the internal market turns on the interdependence of free movement and competition.

This chapter draws on an instance of risk regulation, namely tobacco control, in order to explain the growth of the community's legislative power on the basis of Article 95. It explains that it is no accident that risk regulation is contentious. Risk regulation is rife with the illiberal zeal to shut down and to suppress the risk-perception of others. Not by accident, it is a touchstone for how well a society does at sorting out disagreement on the basis of public contestation and mutual accommodation. Regulating the communication of information about smoking has played a pivotal role in the ECJ's more general formulation of the Union's competence. Indeed, that it had been this type of issue that led to the consolidation of Union competence makes the relevant case law even more remarkable. Apparently, the Union's power becomes holistic when it begins to cut deeply into the European way of life.