Internal market rationality: In the way of re‐imagining the future

• DOI: http://doi.org/10.1111/eulj.12263
• Published date: 01 January 2018
• Date: 01 January 2018

DEBATE

Internal market rationality: In the way of

re‐imagining the future

Marija Bartl*

1|INTRODUCTION

Europe's dissolution has become a major subject of academic debate, suggesting that the EU may be beyond rescue.

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The economic crisis is continuously met with unsolidaristic, and often irrational austerity policies,

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undermining the

support for the EU in the European South. The migration crisis is met with only traces of solidarity among the EU's

Member States,

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while the current plans to repatriate migrants to Greece promise only to aggravate the situation.

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In the European North, in a full break of solidarity with the EU, Britain is heading inexorably towards Brexit, putting

at stake not only the unity of the EU but also of the UK itself.

The question as to why the European project has not “spilled over”to the more robust forms of solidarity and

political integration has haunted commentators on Europe for decades.

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Is the lack of solidarity simply a consequence

of building Europe as a market instead of building a political union, or culture—as Monnet would have it?

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Or, could

we have built a different Europe within the framework of the European Treaties, were we only to give different

meaning to its provisions?

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*

Associate professor at the Faculty of Law, University of Amsterdam, Amsterdam, The Netherlands.

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For instance, Euromemorandum Conference on Alternative Economic Policy in Europe 2016: The European Union: theThreat of Dis-

integration, available at http://www.euromemo.eu/annual_workshops/2016_coimbra/index.html.

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Marija Bartl, ‘Contesting Austerity: On the Limits of EU Knowledge Governance’, (2017) 44 Journal of Law and Society, 150.

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Agustin Menéndez, ‘The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European Integration’,

(2016) 22 European Law Journal, 388.

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EU Observer, https://euobserver.com/migration/136201.

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Scholars have grappled with many aspects of this question. One history concerns the CJEU, aided by private parties (A. Stone Sweet,

The Judicial Construction of Europe, vol. 6 (Wiley Online Library, 2004)), who furthered the “negative integration”and allowed the

expansion of the EU “social deficit”(F.W. Scharpf, ‘The European Social Model’, (2002) 40 Journal of Common Market Studies, 645.).

Another strand of scholarship underlines that the axiology of EU Treaties, which places economic freedoms first, and which has led

to the marginalisation of non‐economic or social concerns in EU law (C. Joerges and F. Rödl, ‘Informal Politics, Formalised Law and

the “Social Deficit”of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval’, (2009) 15 European

Law Journal, 1; Floris de Witte, ‘EU Law, Politics, and the Social Question’, (2013) 14 German Law Journal, 581; Gareth Davies, ‘Democ-

racy and Legitimacy in the Shadow of Purposive Competence’, (2014) 21 European Law Journal, 2). Finally, a different strand discusses

the consequences of the “social”aspects of the EU, such as non‐discrimination and inclusion/access to the market, which have come

to be seen as being promoted at the expense of the concerns for social justice or redistribution (Alexander Somek, ‘From Workers to

Migrants, from Distributive Justice to Inclusion: Exploring the Changing Social Democratic Imagination’, (2012) 18 European Law Jour-

nal, 711; H.W. Micklitz, ‘Social Justice and Access Justice in Private Law’(EUI Working Paper 2011).

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“If we were to do it all again we would start with culture”, quoted in C. Shore, ‘Inventing the “People's Europe”: Critical Approaches to

European “Cultural Policy”’, (1993) 28 Man, 779.

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Clemens Kaupa, The Pluralist Character of the European Economic Constitution (Bloomsbury Publishing, 2016).

DOI: 10.1111/eulj.12263

Eur Law J. 2018;24:99–115. © 2018 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 99

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’,

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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,

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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.

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Svetiev suggests

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.

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After

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.

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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.

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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.

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Leone Niglia, ‘On the “Rationalities”of European Private Law—Between the Internal Market and Law's Discourse’, (2016) 22 European

Law Journal, 566.

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Yane Svetiev, ‘The EU's Private Law in the Regulated Sectors: Competitive Market Handmaiden or Institutional Platform?’, (2016) 22

European Law Journal, 659.

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I focus here on the theoretical elaboration of the concept, leaving the empirical part fully to the previous article.

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Michel Foucault, The Birth of Biopolitics: Lectures at the College de France, 1978–1979 (Palgrave Macmillian, 2004); Michel Foucault,

Security, Territory, Population (Springer, 2007).

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