Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political
European Law Journal, 4/2015.
Posted: 7 Dec 2014 Last revised: 2 Feb 2015
Date Written: December 6, 2014
This paper proposes a new conceptual apparatus, the internal market rationality, for analysing the political, legal and economic consequences of EU integration. The internal market rationality refers to a specific pattern of political action in the EU, which has gradually emerged due to three main factors: the EU functionalist institutional design, the consequences of postnational juridification and a more contingent influence of ideas. Internal market rationality increasingly relies on reified interpretations of the internal market, progressively constraining the space of the Political in the EU. This phenomenon bears strongly also on the content of European law, as I show through the example of European private law. As a result of internal market rationality, the key tenets of this field of law are changed: the concept of justice underpinning private law, the concept of a person or subject, the (re)distributive function of private law as well as the normative basis on which it stands. I argue that a close examination of the legal, institutional and ideological arrangement behind the internal market rationality provides clues for democratising the EU.
The increasing level of disenchantment with the current direction of the European Union (EU) leaves many to wonder who the ‘winners’ of the integration process are. Private law could be considered as one of the winners. The liberalization and privatization of Member States’ (MS) economies, which was invigorated by the EU, has augmented the importance of private law. Yet, while private law has become the principal juridical environment for a growing number of legal relations, its expansion breeds concerns regarding its limits. This is particularly true if private law is appropriated for the purpose of building the Internal Market.
This article proposes a new conceptual apparatus, the internal market rationality, to explain how the EU’s historically primary purpose, that is the establishment of the Internal Market, continues to shape both the substance and the processes of the European (private) law-making today. I argue that the EU functionalist legal-institutional design has been a key factor for the impending reification of political action in the EU in general, and private law in particular.
In the following (Part II), I propose a theoretical framework for understanding the processes of reification of political action in functionalist entities. I explore how the confluence of EU legal-institutional arrangements and a broader ideological constellation made the emergence and the reification of internal market rationality possible. The subsequent section (Part III) analyses the implications of internal market rationality for the transformation of European law. I seek to demonstrate that the internal market rationality has fundamentally transformed the very idea of private law. European private law is based on a different concept of justice, a different notion of person or subject, a different (re)distributive pattern as well as different foundational values. The last section (Part IV) investigates the division of labour among the EU institutions as one of those unexpected consequences of the EU functionalist institutional design, which is vital for the ongoing reification of the political action in the EU, but at the same time contains the seeds for its containment.
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