Marija Bartl

Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EUs functional institutional design; second, the processes of post-national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.

The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit

The new institutional framework of subsidiarity is expected to lower the EU democratic deficit. In contrast to this optimistic scenario, I argue that the success of subsidiarity depends on its capacity to unravel the EUs ‘substantive’ democratic deficit. Linked to the Unions functionalist institutional design, this dimension of the democratic deficit has developed due to two limitations of EU-level politics. First, the EU functionalist design has narrowed the range of topics open to democratic debate (horizontal substantive democratic deficit). Second, the proportion of the debate which we could genuinely describe as being political is declining as a result of the de-politicisation of EU goals, underpinned by a massive accumulation of allegedly apolitical expert knowledge (vertical substantive democratic deficit). Against this background, I contend that by involving actors relatively alien to the EU functionalist thinking, subsidiarity could offer an opportune ground for the re-politicisation of democratic ‘blind spots’ in EU policy making.

A Postnational Marketplace: Negotiating the Transatlantic Trade and Investment Partnership (TTIP)

The Transatlantic Trade and Investment Partnership (TTIP), the new trade agreement between the EU and the US, has a great ambition: not only if measured by the size of the emergent market, but also the potential spill over of its regulatory standards to the global level. The cooperation between the partners is envisaged on an ongoing basis in a range of fields-such as pharmaceuticals, chemicals, public procurement or motor vehicles.The TTIP differs from the standard trade agreements. Not only by the size of the market it intends to create, or the potential spill over effect of its regulation, but foremost by the level of envisaged institutionalisation. While the negotiations themselves are ambitious in its scope, the most contentious and salient issues will be left as a future agenda to the new institutions of the TTIP, such as the Regulatory Cooperation Council with rule-making capacity.This raises a number of questions. First whether this agreement may be legitimately classified as a conventional international trade instrument at all, not least for the purposes of the procedures that apply to its approval and ratification, pursuant to Article 218 TFEU. Secondly, and more fundamentally, it poses the question as to who sets the normative agenda for these far-reaching negotiations and how this specific agenda reflects EU values and standards as an aspiring democracy. The paper considers who has set the normative agenda in the negotiation of the Transatlantic Trade and Investment Partnership (TTIP), reflecting upon both the actors and processes thereof. We focus on the questions of 1) participation in crafting the TTIP, 2) the role of knowledge in justifying this enterprise, 3) the objectives of the TTIP and 4) the institutions that should underpin it. We argue that the parliamentary legitimation, including approval and information rights, are inadequate in light of the institutionalisation processes which forms the goal of the TTIP.

Contesting Austerity: On the Limits of EU Knowledge Governance

Lacking robust democratic foundations, EU authority is founded on output legitimacy — delivery of (economic) prosperity through rational governance. Yet current austerity policies are the epitome of irrational governance. While this volume highlights the EUs limited ability to deliver rational output through law and legal rationality, I argue that, without democracy, the EU cannot deliver the desired output through knowledge and technical rationality either. In fact, embedding expert institutions in democratic institutional settings plays a crucial epistemic role, contributing to the production of more reflective, socially inclusive knowledge. Lack of such democratic input in the EUs knowledge production is one of the root causes of its crumbling output legitimacy and the creation of many disenfranchised (internal) peripheries. Three recent challenges of Brexit, TTIP, and austerity may be seen as attempts to reclaim the democratic responsiveness of EU technocratic rule. However, the strategies of exit and voice have not been available in all these cases: in the Greek tragedy, contesting austerity ended in subjugation: a mirror image of ‘rational’ governance if unaided by inclusive democratic process.

Minimum Harmonisation after Alemo-Herron : The Janus Face of EU Fundamental Rights Review

While Alemo-Herron v Parkwood Leisure Ltd (case C-426/11) has obtained much criticism in recent months, one fundamental constitutional question has passed-by unnoticed. In Alemo Herron the Court of Justice expanded the scope of EU fundamental rights review in the field of minimum harmonisation to include, in particular, member states action that goes beyond the EU minimum rules. This expansion of EU fundamental rights review is bound to unsettle the division of powers both horizontally (between the EU institutions) and vertically (between the EU and the member states), and at the same time, perhaps counter-intuitively, poses a significant danger for the level of social and environmental protection in Europe.

[Review of: L. Niglia (2015) The struggle for European private law: a critique of codification]

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