through the EU’s enlargement, neighbourhood and external policies.
concerns about the enla rgement of EU competenci es over time, the creation and
regulation of the internal market had long been viewed as a success, enhancing the EU’s
output legitimacy within and establishing the EU as a credible market regulator without.
The sceptical turn in EU law scholarship involves re-evaluating the very premises and
legal foundationsof the internal market project. Suchscepticism appears so profound that
it leads to doubtsabout the possibility of reformthat would set the internal marketproject
on a more sustainable path,
without revolutionary changes in the basis, documents and
objectives of EU integra tion by either drastical ly scaling up the ambition of t he
or consciously going in reverse.
When it comes to the internal market project—the focus of this article—the re-evalua-
tion of EU efforts at market-co nstruction and regulation in volves a set of interrelated
claims. The principal claim is that the EU has been a driver of economisation throu gh
the constructionof markets around competitiveprinciples, a process that ineluctablyleads
to the elimination of national market regulati on and social protection, which are both
product and source of democratic solidarity and cohesion. As such, apart from being an
economising force,the EU’s market-building project is also seen as a homogenisingforce
because it favours negat ive integration, reduc ing available justiﬁcations for national
democratic policy-making and, in turn, evenundermining national identities and cultures
as reﬂecting particular ‘ways of life’.
Such effectsare said to be the result of at least threefeatures now encoded in EU market
construction, which are extremel y difﬁcult to reverse through gradualist ti nkering and
without radical change in both the mechanisms of EU integration and the sources of its
First, EU legal integration has focusedon the creation of markets built upon
competitive principles to favour cross-border trade and establishment, supported by free
movement and competition law that eliminate local reg ulatory barriers. Secondly, EU
law’s competitive strictures are no longer seen to accommodate national policy-making
rooted in social or uniqu ely local policy concer ns. Negative integratio n is so deeply
entrenched in the jurisprudence of the European Court of Justice (CJEU) that it makes
EU law unable to accommodate national regulatory autonomy, or to provide a frame-
work for protection, let alone enhancement, of socio-economic rights at EU level. This
outcome does not necessarily reﬂect a market bias on the part of the CJEU, but rather
the constraints of judicial decision-making on the basis of precedent and the limits of
judicial remedies in p rotecting positive vers us negative rights.
Finally, the CJEU’s
impetus towards negati ve integration is unlikel y to be legislatively reverse d. This is
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A. Bradford,‘The Brussels Effect’, (2012)107 Northwestern UniversityLaw Review,1–68.
G. Davies, ‘Democracy and Legitimacyin the Shadow of Purposive Competence’, (2015) 21 European Law
A. Somek, ‘Europe:Political, Not Cosmopolitan’, (2014) 20 European Law Journal,142–163.
G. Majone, Rethinking theUnion of Europe Post Crisis: Has European IntegrationGone Too Far? (Cambridge
G. Davies, ‘Internal Market Adjudicationand the Quality of Life in Europe’,(2014)21Columbia Journal of
Davies, above, n. 4.
F. Scharpf, ‘The Asymmetry of European Integration, or Why the EU Cannot be a “Social Market Econ-
EU Private Law in the Regulated SectorsSeptember 2016
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