A Critique of the Rhetoric of Common Interest in the EU Legal Discourse

Abstract

The current Euro crisis simply brought to the fore a larger and hitherto invisible structural problem as to the relationship between the European Unions center and its periphery. I am arguing that the interests and concerns of the peripheral EU countries are difficult to express in the existing legal discourse and that this crucially influences their position in the EU.

The existing legal thinking in EU legal scholarship reproduces the existing hierarchies in the European Union and specifically, between the hierarchy between the EUs center and periphery. Countries of the center are for example Germany, France, the Netherlands, Austria, Sweden, Finland, and the United Kingdom. Countries of the periphery are, for example, Hungary, Portugal, Greece, Bulgaria, Latvia, Poland, Slovenia and Estonia.

The thinking of the EU legal profession is one of the center of the EU and this crucially determines how harm is conceptualized in EU law. The position of the EUs periphery is not reflected in the existing EU legal discourse. First, the way the EU is structured and the way issues are framed for discussion makes it difficult to notice and address distributional consequences of the EU legal structure between the center and the periphery. Second, many of the periphery's aspirations and claims for protection against harm are foreclosed from operating powerfully in the Union.

I argue that there is no doctrine of the periphery and challenge existing thinking in antitrust law, state aid law and free movement law. I am challenging the dichotomy of social and autonomy claims in Contemporary legal thought and argue that this kind of thinking and critiques based on such thinking are not only theoretically unwarranted, but often work to the detriment of the periphery. I argue that the prohibition of social dumping and the lack of prohibition of goods dumping in EU law harms periphery's industry.

The legal system is better understood as a set of freedoms and prohibitions rather than a dichotomy between social and economic considerations. From this angle, the picture of the EU is quite different: the EU's center has more freedoms and less prohibitions and the periphery has more prohibitions and less freedoms. I argue that these entitlements should be rearranged if all the rhetoric of inclusion of the other and tolerance is to have any real substance.

I further critique the constitutional and pluralist discourse in the Union. I argue that the focus of the legal profession on adequate representation and participation is analytically insufficient and I further critique the constitutionalist/pluralist discourse for inadequate conceptualization of power and general assumption of common interest in the Union. The existing theorizing of the EU only explains, rationalizes and legitimates the status quo.

Keywords: center, periphery, social, economic, constitututional theory, representation, participation, EU budget, critique, foreclosed, laval, viking, left, right, discourse tax and transfer, critique, European Union, myrdal, inclusion of the other