In 2015, I published an article in the European Law Journal titled ‘Internal market rationality, private law and the
direction of the Union: Resuscitating the market as the object of the political’,
that aimed to shed some new light
on this important question. In that article, I argue that the EU's institutional design has indeed played an important role
in a peculiar de‐politicisation of the EU, rendering it difficult to contest the neoliberal framing of intervention in the
Internal Market. This de‐politicisation has taken place due to a confluence of the EU design of knowledge production
processes on the one hand, and neoliberal discourse on the other. I coin these reifying frames of political intervention
as ‘Internal Market Rationality’(IMR). The article's added value, as it were, was to expand on an intuition shared by
many EU lawyers, while not resorting to essentialism with regard to either the Treaties or the Internal Market.
In recent issues of the European Law Journal, two interesting critiques of this article have appeared. Leone Niglia,
in a direct response to this piece,
points out that there is nothing like an ‘all‐encompassing’IMR in European private
law. According to Niglia, the concept of IMR does not give sufficient credit to the resistance of courts and national
legislatures to the Commission's efforts to advance its internal market projects. In fact, he suggests, a much better
starting point for the academic inquiry is to focus on resistance to such EU Commission‐driven political rationality.
In the following issue, Yane Svetiev critiques the account from the ‘experimentalist’perspective.
that if there is any comprehensive rationality in the EU, it is a ‘problem‐solving rationality’. He believes that the EU
market regulation exhibits experimentalist tendencies, whereby EU goals are put in action in local contexts in a way
that partially detracts from, or enriches, the EU's market orientation with other normative concerns, ultimately
transforming the EU objectives themselves.
I would like to use this opportunity to respond to these critiques by first unpacking the concept of IMR.
explaining the theoretical origins of the concept (Section 2), I break the discussion down into four integral
components: the telos of IMR (Section 3), the technologies of IMR (Section 4), the mechanisms of reification of IMR
(Section 5) and the effects of IMR (Section 6). Once I have set out this theoretical framework, I will respond to the core
critiques raised by Niglia and Svetiev, namely the position of “resistance”(Niglia) and “problem solving”(Svetiev) in the
framework of IMR (Section 7). I conclude with an invitation to exploit the IMR's institutional analytics to study the
interactions between discourses and institutions in functionalist integration beyond the state.
2|ON THE THEORETICAL ORIGINS AND THE CONTRIBUTION OF
“INTERNAL MARKET RATIONALITY”
The concept of IMR may be seen as building on two distinct theoretical apparatuses. On the one hand, IMR is
presented as a political “rationality”, and an instance of neoliberal political rationality, drawing thus on a body of
literature that originates with Michel Foucault.
On the other hand, IMR also incorporates the words “internal
market”in order to emphasise the importance of the EU institutions for understanding the role of the concept.
Together, the original article offers an institutional analytics, which allows us to acknowledge how the design of
knowledge production processes may influence the appropriation of broader “ideological”discourses. I will discuss
these two different analytical components of IMR in turn.
Marija Bartl, ‘Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the
Political’, (2015) 21 European Law Journal, 572.
Leone Niglia, ‘On the “Rationalities”of European Private Law—Between the Internal Market and Law's Discourse’, (2016) 22 European
Law Journal, 566.
Yane Svetiev, ‘The EU's Private Law in the Regulated Sectors: Competitive Market Handmaiden or Institutional Platform?’, (2016) 22
European Law Journal, 659.
I focus here on the theoretical elaboration of the concept, leaving the empirical part fully to the previous article.
Michel Foucault, The Birth of Biopolitics: Lectures at the College de France, 1978–1979 (Palgrave Macmillian, 2004); Michel Foucault,
Security, Territory, Population (Springer, 2007).