The False Commodity in the European Game of Legal Chairs: Between the Ideal of Regulatory Competition and the Practice of Capitalism Triumphant

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Table of Contents: I. From the legal regulation of cross-border relations to systematic policy and regulatory competition. – II. European Community law as the discipline of cross-border legal relations. – II.1. Community law as the European law of conflict: coordinating public power through law. – II.2. The limits of Community law as European law of conflicts: Europe entrapped. – III. From Community to Union: fostering normative competition through European Union law. – III.1. The narratives of the single market and of the single currency. – III.2. From Community law to Union law through policy and regulatory competition. – IV. After the crises: the unhidden hand of supranational power. – IV.1. The gathering of the crises: private debt as macro-economic stabiliser. – IV.2. Old governance in new rules: the European socio-economic model as a zero-sum game. – V. Conclusions.

Abstract: Community law was established as a meta-legal order to provide a systematic solution to conflicts betweeen national legal orders. Integration, and in particular integration of law, was required to tackle the functional and normative problems that ensued from the disorganised co-existence of State legal orders in Europe. Integration of law was made compatible with the preservation of autonomy to define the national socio-economic model and structure because early European legislation organised the co-operation of national legal orders. The power to regulate and mould the economy was reinforced, at the same time that the sharpest corners of national power were clipped (by reference to the formal principle of non-discrimination). From the late seventies, the point and purpose of European integration was redefined. L’Europe par le marché resulted in integration through law, making of law the key means through which national regulatory and monetary policies were made to compete with each other. The result was the progressive definition of the content of law by the exercise of economic freedoms, a most peculiar process leading to turning law into a false commodity. Since the late 2000s, the role of law in the process of European integration has been increased to the detriment of governance arrangements, but this has only exacerbated the commodification of law and its submission to the imperative of ensuring the store value of money.

Keywords: constitutional law – economic law – regulatory competition – economic freedoms – monetary union – public powers.

European Papers, Vol. 4, 2019, No 1, pp. 127-155
2499-8249 - doi: 10.15166/2499-8249/302

* Profesor Contratado Doctor Permanente I3, Universidad Autónoma de Madrid, Christian Joerges gewidmet, dem Lehrer und Befürworter von einem anderen Europa, das noch nicht geboren ist.


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