Tuesday, June 25, 2013
5.55 (PC Hoofthuis)
The European Court of Justice’s case law on economic integration has had a significant impact on the social and economic organization of Member States. The structures of their welfare states, the organization and authority of their professions, the (now residual) scope of public monopolies and privileged public services, and rights to state protection via social insurance and other benefits have all been redefined to a meaningful extent. Doing so inevitably entails a balancing of interests, and the core reasoning in the judgments is structured in terms of balancing and weighing, and ultimately in terms of reconciling, the interests at stake. Yet it is notable that certain types of interests are largely absent from the judgments, and where present are lightly dismissed. These interests are primarily to do with local, social, or collective concerns – solidarity, identity, social cohesion, tradition, community autonomy. By contrast, the interests of citizens not as participants in a collective national enterprise, but as functionally-oriented autonomous units within a wider Union – health, safety, efficiency, transparency – are more heavily weighed. While this imbalance is sometimes presented in terms of a technocratic bias, an integration bias, or a neo-liberal ideology, this paper suggests that these arguments are incomplete, and underplay the importance of legal process and the reactive nature of judicial reasoning: a central reason for the Court’s selective focus is the nature of the arguments presented to it, which reveal national authorities who are themselves uncertain of the goals and functions of their institutions, and which lack the language to discuss this effectively. The interrogation of the state which occurs at the ECJ is of a novel nature, and as much a process of self-discovery as of supra-national constraint.
