So far, we are aware that the EU is characterized by a fundamental asymmetry between the institutional conditions of positive integration and those of negative integration, in a way that strongly favors the latter. We have also seen that the Dutch private firm Van Gend & Loos, through a case brought before the European Court of Justice (ECJ) in 1963, provided an important impetus to the ECJ’s own ability to interpret the law and hence to determine the political direction of the EU as a whole. In the Van Gend & Loos case, the ECJ’s verdict established that the EU Treaties enjoyed direct effect in all member states and that this meant that a supranational European legal order had been created as part of the ‘spirit’ of the Treaties. As Luuk van Middelaar notes, the ECJ could have moved on to establish the related matter of the supremacy of European law over national law in one fell swoop, but since the Dutch constitution already established that international law held priority over national law, this was not deemed to be necessary (Van Middelaar 2009, 52). A little over a year later, the case Costa/ENEL, this time pitting an Italian consumer against the Italian national electricity company, created the additional performative effect in relation to the European legal order required to ascertain its supremacy over national law. They key sentence is:
By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. (European Court of Justice, Judgment of 15.7.1964 — Case 6/64, emphasis added)
Stemming from the nature of Article 12, which we cited in the previous post, European law pertaining to competitiveness gained a new constitutional status. This created practical problems on the level of national competitive law. After all, how could treaties that were ratified by national parliaments take precedence over constitutions, which in most cases could not be changed by the parliaments in the same fashion? (Owing to perpetuity clauses, for instance.) (Scharpf 1999, 52-56; Majone 2014, 100) The response from national courts was to accept this precedence as the new practice (Weiler 1982, 44-45; Weiler 1992; Burley & Mattli 1993). The political significance of this shift is clear: the ECJ enjoys a de facto monopoly when it comes to the interpretation of EU law, and it has the competency to reject national law that is at odds with the laws of the community [gemeinschafswidrig] (Scharpf 1999, 57).
Scharpf mentions a further case, Cassis de Dijon (1979), which makes clear that the ECJ decides whether a national product description is ‘reasonable’ and that national decrees on product quality are to be seen as inferior to communal ones: every product that is legally allowed in one of its member states, should be importable without further complications. “Thus, through the juridical order, the freedom to buy and sell had gained constitutional precedence over the political discretion of a democratically legitimated legislative” (Scharpf 1999, 58).
Because the ECJ has thus given itself the interpretative competence to define and enact the spirit of the Treaties in a way that is not subject to democratic control, either on the European or the national level, the process of European integration attained a high degree of autonomy and, consequently, a lot of momentum. Given the wish to push integration forward and the fundamental asymmetry between positive and negative integration, it is no surprise that negative integration has been the main beneficiary of supranational European justice (ibid, 53). The Treaty of Rome already contained the explicit obligation to reduce and finally abolish internal tolls and restrictions on internal trade, so that negative integration could be implemented without great political upheaval and was backed up by the European Commission and ECJ’s joint effort to uphold the Treaty (ibid).
In effect, the pressure to integrate through the ECJ has meant a ‘declaration of war’ on mixed economic orders. Like the effect of European politics on national citizens, it was European integration itself that has fleshed out the full implications of the autonomous position of the ECJ and the EU’s commitment to negative integration. The member states are each involved in national regulation designed to provide relief from competition for certain goods, services, and infrastructural functions in the name of common interest, service public, or Daseinsvorsorge (ibid, 60). The scope of this domain greatly varies between the different countries, but education, basic research, health care, pensions and agricultural policy are examples of domains that have historically been felt to belong outside of the competitive sphere. But this competition-free domain provides an exception from the norm of a single, competitiveness-oriented internal market, so that the scope of competitive law has been expanded to areas that “could influence global competitiveness”; and this includes the core domains of national parliaments, like “social policy” and “education” (Habermas 2011, viii).
It seems plausible to say, with Scharpf, that the privileged status of these domains could never have been successfully assailed within the national politics of any member state (Scharpf 1999, 61-62; Cox 1996). But through the near invisibility of individual decisions of the ECJ, which we have touched upon in a previous post, a certain logic has been established that pushes the EU and its member states in the direction of seeing these exceptions as little more than obstacles standing in the way of further European integration. This logic has its roots in the ‘constitutionalized’ status of negative integration, which has expanded from Article 12 of the Treaty to the ECJ’s performatively produced interpretative monopoly of the Treaty. Any institutional difference between member states can be argued to constitute a competitive imbalance (Scharpf 1999, 62) – hence, an almost limitless liberalization becomes possible. Because of the pressure to pursue integration and the impossibility of doing this via positive means, there is a real pressure on national governments to treat all domains as equal, in the sense of being equally suitable for competition.
We have now encountered the pressure to further European integration a number of times. It is because of this pressure that the ECJ, being the point of least (political) resistance, is caught up in the logic of negative integration. Without this driving force, the whole process that we have described has little meaning. This should lead us to ask: why is integration so important? We will begin to answer this question in the next post.