“Integration through law” and us

Abstract

This article examines the general introduction to the vast and still impressive Integration through Law (ITL) series, which, if by the force of the title alone, has had a powerful impact on the development of EU studies. This introduction deals essentially with the following question: How does law operate in a non-legal context in order to produce a pluralist form of “federal union” in Europe? While the question remains valid, the context, however, has dramatically changed. The difficulty is to find a way to pursue integration in a context not only of a profound and multifaceted crisis, but in an atmosphere of widespread mistrust in the positive force of law. By engaging a discussion with the ITL project, this article aims to prompt a reflection on integration in light of current social and political conditions.

Full text

I•CON (2016), Vol. 14 No. 2, 449–463 doi:10.1093/icon/mow024
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“Integration through law”
andus
LoïcAzoulai*
This article examines the general introduction to the vast and still impressive Integration
through Law (ITL) series, which, if by the force of the title alone, has had a powerful impact
on the development of EU studies. This introduction deals essentially with the following
question: How does law operate in a non-legal context in order to produce a pluralist form
of “federal union” in Europe? While the question remains valid, the context, however, has
dramatically changed. The difculty is to nd a way to pursue integration in a context not
only of a profound and multifaceted crisis, but in an atmosphere of widespread mistrust in
the positive force of law. By engaging a discussion with the ITL project, this article aims to
prompt a reection on integration in light of current social and political conditions.
1. Introduction
This article examines the general introduction to the vast and still impressive
Integration through Law (ITL) volumes, which if by the force of its title alone, has had
such a powerful impact on the development of EU studies. The eponymous introduc-
tion was co-authored by Mauro Cappelletti, Monica Seccombe, and Joseph Weiler. In
their “Integration Through Law: Europe and the American Federal Experience,” they
tell us that “integration is fundamentally a political process” and law is “but one of
the many instruments” harnessed to achieve the objectives of integration. Yet, this
does detract from the fact that “law has a vital role to play in the process.”1 This set of
propositions captures the essence of the project. Indeed, throughout their sixty-eight-
page essay, the authors deal with the following question: How does law operate in a
non-legal context in order to produce a pluralist form of “federal union” in Europe?
This question still remains valid. The context, however, has dramatically changed.
When the ITL project posed this question, law had long been presented as the natural
driving force of the process of integration. Walter Hallstein famously stated in the
1970s: “The European Community is a remarkable legal phenomenon. It is a creation
* Professor of European Law, Sciences Po Law School, Paris. Email: loic.azoulai@sciencespo.fr
1 Mauro Cappelletti, Monica Seccombe & Joseph H.H. Weiler, Integration Through Law: Europe and the
American Federal Experience, in 1.1 IntegratIon through Law 3, 4 (Mauro Cappelletti, Monica Seccombe &
Joseph H.H. Weiler eds., 1986).
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450 I•CON 14 (2016), 449–463
of law; it is a source of law; and it is a legal system.”2 The rule of law was, according to
this conception, supposed to replace force in European politics. Law was conceived of
as an antidote to force and a means to achieve peace. At its core, this vision presented
law not only as a functional tool but as a cultural or symbolic form, as a carrier of a
new spirit of cooperation and solidarity, and as the medium capable of containing
political, economic, and social forces, as well as the cement capable of holding these
divergent forces together.3 What the introduction to the ITL project underscored in
1986 was the difculty of nding a way for this form of integration to ourish in
times of crisis when member states had retreated into protecting their own national
and economic interests. The authors acknowledged the limits of law as an instrument
of change in such a context.4 Political factors would be essential to the success of this
enterprise. Yet, the role of law as an effective and symbolic integrative force was not
challenged.
The difculty we face today is different: it consists in nding a way to pursue inte-
gration in a context not only of a profound and multifaceted crisis (prolonged eco-
nomic stagnation, the rise of nationalism, the crisis of political representation, and
external threats) but of a widespread mistrust in the positive force of law. The legal
form, long associated with the success of European integration, is now perceived as
an appendage to economic forces and governmental machines undermining the social
structures of the member states, producing social commodication and cultural stan-
dardization. The narrative of an intimate and positive relation between law and inte-
gration is over.5 The question of integration through law must now be dened in the
context of a broader process that is legally structured not only by presumed homoge-
neity, equality, and inclusion, but also by increased forms of heterogeneity, inequal-
ity, and exclusion. Indeed, this article starts from the assumption that “integration
through law” is what may be called a “conjunctural concept”: one that takes on a new
meaning depending on the historical time in which it is formulated.6 It follows that,
from the start, we face a twofold problem. The rst problem is to ask what it means
to integrate Europe through law in a context in which law is no longer considered as
the critical factor of success. The second problem is: What form does the ITL question
take for us as we wonder about the positive force of law? How does our contemporary
2 waLter haLLsteIn, europe In the MakIng 30 (1972), originally published in German as Der unvoLLenDete
BunDesstaat (1969).
3 The most prominent representative of this vision of the Rechtsgemeinschaft today is Martin Selmayr, the
Head of the European Commission President’s Cabinet, who interprets this tradition in a rather nar-
row way by considering the Union as a legalistic construction: see Martin Selmayr, The Foundation of a
European Law institute: The Planting of a Little ‘Apple Tree’ for a European Legal Culture (June 1, 2011), avail-
able at https://www.europeanlawinstitute.eu/leadmin/user_upload/p_eli/_3__Martin_Selmayr.pdf.
4 Cappelletti etal., supra note 1, at 46.
5 For an early account, see Jo Hunt & Jo Shaw, Fairy Tale of Luxembourg?: Reections on Law and Legal
Scholarship in European Integration, in refLectIons on european IntegratIon: 50 Years of the treatY of roMe 93
(David Phinnemore & Alex Warleigh eds., 2009).
6 For a slightly different approach focusing on the “revisitation” of the ITL project in light of present condi-
tions, see “IntegratIon through Law” revIsIteD. the MakIng of the european poLItY (Daniel Augenstein ed.,
2012).
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“Integration through law” andus 451
context of European integration condition and permeate the concept of integration
throughlaw?
Before Igo any further, Ifeel compelled to say something about the concept of law
used in this text. What is “law” in the ITL project? We might conclude rather quickly
that law is both the object of integration—the focus being on the legal process of
bringing distinct national legal systems together such as to create a new legal order—
and the agent or instrument of integration—the focus being on the process of framing
through legal instruments (institutions, concepts, doctrines) the economic, social,
and political spheres such as to achieve the basic goals of integration. Note that, in
either case, law is constructed in instrumental terms. This dual characterization of
the role of law in the process of integration is set out clearly in the introduction and
has become a classic observation in European studies since then.7 However, the intro-
duction actually starts with another account of the place of law which informs the
whole research project:
the law has a vital role to play in the process. It denes many of the political actors and the
framework within which they operate, controlling and limiting their actions and relations . . . .
At the same time it performs a role in ordering social life, translating the highly visible political
acts into more mundane daily applications and, through this implementation, it determines
the implications of the political decisions.8
Hereby the authors are concerned with the relation of law to political and social life,
but more broadly with the relation of the legal system to social and political systems.
They write: “integration aims at fundamental restructuring of society and societal
attitudes, and these changes are reected and promoted by the law.”9 Law is an instru-
ment of restructuring society and politics. The classic image of law, underpinned
by the “social,” is reversed into an image of law forming the “infrastructure of the
social.”10 Law affects social attitudes by creating norms and conferring rights and
obligations on member states and private parties, but also by translating political and
social actions into legal forms conveying the values of integration. The claim here is
that, although law is pragmatically responsive to social and political factors, it remains
amenable to a kind of internal rationality different from the political.11 Therefore, the
elementary question of the ITL project, and indeed perhaps the dening question of
any integration study, is: how is law able to structure the integration process when it
is assumed that only certain aspects of the process are directly governed by law, and
others clearly are not?
7 As classically conceptualized by Renaud Dehousse & Joseph H.H. Weiler, The Legal Dimension, in the
DYnaMIcs of european IntegratIon 242 (William Wallace ed., 1990).
8 Cappelletti etal., supra note 1, at4.
9 Id. at 42–43.
10 The expression is from Armin von Bogdandy, Founding Principles of EU Law: A Theoretical and Doctrinal
Sketch, 16(2) eur. J.L. 95, 101 (2010).
11 See along the same approach Gráinne de Búrca, Rethinking Law in Neofunctionalist Theory, 12(2) J. eur.
puB. poL’Y 310 (20005); Andrea Grimmel, The Uniting of Europe by Transclusion: Understanding the
Contextual Conditions of Integration Through Law, 36(6) J. eur. IntegratIon 1 (2014).
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452 I•CON 14 (2016), 449–463
2. Integration through law versus the law of integration
The rst author to articulate clear answers to this question was Pierre Pescatore in
a small book entitled The Law of Integration published in French in 1972.12 The book
offers an account of the experience of the European Communities, famously portrayed
as a phenomenon distinct from the classic international experience. It is not by chance
that, starting in 1978, ITL has stood in a chiasmic relation to the “law of integra-
tion.” In many respects, ITL is an attempt to address the shortcomings of the law of
integration’s construction while sharing the assumption that the integration process
is engaged in the building of a new economic, social, and political order. To discuss the
ITL concept, it makes sense to situate it with respect to this other construction.
Both projects are predicated on the assumption that integration is engaged in a
unique and valuable order-building enterprise without possessing the correspond-
ing means, instruments, or resources to displace preexisting domestic orders. Both
assume that integration is a eld fraught with contradictions; to name but a few:
integration aims to be a self-standing enterprise but it largely depends on member
states’ structures, rules, and institutions for its implementation; it purports to set up
its own institutions with a new overarching authority, but it is deprived of its own
enforcement and coercion powers; it is based on an “ever closer relationship between
the peoples of Europe,” presenting itself as a new political community, but it does
not dispose of the corresponding instruments to acquire a popular basis of legitima-
tion. The question therefore is how to overcome these contradictions. To make this
tenuous and precarious process sustainable, the law of integration has adopted a
twofold approach. It consists, rst, in covering up the contradictions by providing, or
rather revealing, the structure of support that will sustain the process of integration.
Pescatore’s approach is a structural approach. The integration process is based on
what he calls “new structural constellations”—a set of institutions relying on “new
principles of representativity,” distinct from the principle of representation of states
applied to classical international organizations. Underpinning this institutional con-
struction is a “grand idea of order determined by the existence of common values” “to
which participants are ready to subordinate their national interests and their national
hierarchy of values.”13 This idea of order is placed above the fray of inter-state rela-
tions, and its representatives are the European institutions operating through law. As
a result, integration is not only a creative and phenomenal process rooted in an initial
clear “plan”; it is an order, a structure, which denes its own telos. The operation of
European law must reect this telos which underpins the process. No doubt this con-
struction has had a real performative effect in shaping the discourse and practices in
the integration process.
But that is not all. The law of integration was also conceived of as a practical device.
It was part of a strategy to compel legal and political minds to promote the goals of
integration. It should be remembered that Pescatore was both a scholar who studied
12 pIerre pescatore, the Law of IntegratIon. eMergence of a new phenoMenon In InternatIonaL reLatIons, BaseD on
the experIence of the european coMMunItIes (1974).
13 Cappelletti etal., supra note 1, at 50, 51.
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“Integration through law” andus 453
integration and a judge deeply involved in the European construction. His milieu
included jurists and jurisconsults who circulated among the different institutions and
conveyed a shared culture of supranationalism and compelling arguments in sup-
port of integration. This mobile and mobilized group of people is what sociologists
and historians have come to recognize as a central feature of the integration process.
This is where they see “integration through law.”14 The aim of this enterprise was to
make the connections, develop the doctrines, control the thinking on integration, and
nally force the main players to adopt an internal point of view as participants in the
process, as parts of a whole with a clear agenda. In short, there are two ways in which
the law of integration attempted to overcome the gaps which the integration process
originally left open: by putting forward a structural approach to European law and by
blurring the boundaries between theory and practice.
The ITL project may be seen as an effort to expose the fallacies of this enterprise. ITL
condemns the ideological prejudices which burden the subject of European integra-
tion. It rejects the “temptation of a [supranational] model of integration characteristic
of the early days of the European Community” as reected in the Law of Integration
project.15 Seeking a conception of integration “free of any ideological connotations,”
it adopts a realist and comparative point of view.16 ITL relies on two methodologi-
cal shifts. The rst one involves using the comparative method as an instrument to
provide “a yardstick for objective evaluation” of the integration process. The authors
contributing to the project compare federal regimes, the principal model chosen for
comparison being the European Communities, and the United States. The objective
of the ITL project is “less to identify the best federalist machinery for universaliza-
tion than to trace similarities and differences” and ask questions of one system which
may prove insightful with regard to another.17 The advantage of a comparative analy-
sis is that it eschews the appeal to a telos or to universal principles by its very nature
as a method that relies on an inevitable tension between similarities and differences
among local systems. The second shift is from law to governance. The project intends
to explore not only the content of law but also the “pre- and post-normative phase,”
the process of lawmaking, and the impact of law on the ground.18 Beyond a positivist
account of law, the project looks into the real processes by which law is negotiated and
implemented. This has prompted a special interest in economic and political factors
as well as actors and relations or conicts among actors, especially judicial organs.19
These two methodological precepts have proved extremely fruitful in the eld of
European studies. However, as a basis for a neutral framework of analysis—what
Mauro Cappelletti used to call a “laboratory” for analysis—they have proved to be
14 antoIne vauchez, BrokerIng europe. euro-LawYers anD the MakIng of a transnatIonaL poLItY (2015).
15 Cappelletti etal., supra note 1, at8.
16 Id. at 12.
17 This is how Daniel Kennedy depicts traditional comparativism in the domain of public law: New
Approaches to Comparative Law: Comparativism and International Governance, 2 utah L.rev. 587(1997).
18 Reference is made in the introduction to a “‘total’ approach to legal analysis”: Cappelletti etal., supra note
1, at 62.
19 See, e.g., Joseph H.H. Weiler, Community, Member States and European Integration: Is the Law Relevant?,
21(2) J. coMMon Mkt stuD. 56 (1982).
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454 I•CON 14 (2016), 449–463
problematic. The reason is that the project remains tied to the vision of integration
as a federal experience “with a view to future progress.”20 However, the authors make
clear that federal experience does not mean the construction of a homogeneous fed-
eral state. The federal idea combines the search for unity with genuine respect for
the autonomy of the participant entities.21 For the authors, the federal structure is
essentially exible. There is much leeway in trying to provide for the unity of such
non-unitary polities.22 Still, this project presupposes the existence of an “overarching
frame of reference” underpinning the integration process; the frame transcends the
national and European units. There is an idée de base (in French in the text) and this is
federalism.23 From this idea they derive “important principles” organizing the system:
namely, participation, democracy, legality, rule of law, coherence.
In a central passage of the text, the authors are emphatic that “it is a legal order that
we are expounding.”24 This is a rather striking expression. It strongly resonates with
what US Supreme Court Chief Justice Marshall famously wrote in 1819 in McCulloch
v. Maryland: “we must never forget that it is a constitution we are expounding.”25
However, in Europe, there is no federal demos to which this legal order may be ascribed.
Moreover, the authors refuse to identify the telos of the Common Market and the politi-
cal unication of Europe as the normative foundation of this new order, and that is
their core difference with the Law of Integration’s construction. Crucially, therefore,
ITL places an “ethos” at the core of the integration process. The challenge is to build
a European constitutional order based on the fundamental value of personhood in a
manner which respects and involves all the participants at all levels of government. As
a result, ITL is not only about understanding different federal systems; it is also about
constructing a new order. What we have is not comparative law analysis and socio-
political analysis as two separate methods of analysis. These two streams ow together
under the ITL approach. We should see comparative law, as it is used in this project, as
supporting a model of governance, transparently a federalone.
This approach is reected in the two meta-principles put forward by the authors in
order to organize the wider subject matter to be analyzed: the rst principle is what
they call the “basic European identity” and the second is the “Federal principle.” These
are not only organizing principles but also normative principles. On the one hand,
European identity is a way of bringing about “a new dimension of the rule of law”
and justice which is based on the protection of the individual.26 This new dimension is
20 Cappelletti etal., supra note 1, at 10.
21 At this point, Cappelletti etal., supra note 1, explicitly refer to Pescatore according to whom federalism
requires that “two basic prerequisites are fullled: the search for unity, combined with genuine respect
for the autonomy and the legitimate interest of the particular entities”: see Pierre Pescatore, Foreword, in
courts anD free Markets: perspectIves froM the unIteD states anD europe x (Terrance Sandalow & Eric Stein
eds., 1982).
22 This is clearly outlined by George Bermann in his review of the whole series: Book Review, forDhaM Int’L
L.J. 232 (1987).
23 Cappelletti etal., supra note 1, at 26.
24 Id. at 26.
25 McCulloch v.Maryland [1819] 17 U.S. 316.
26 Cappelletti etal., supra note 1, 68.
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“Integration through law” andus 455
best encapsulated in the area of free movement of persons. Indeed, European law has
granted the individual a “position which begins to resemble a constitutional position.”
To illustrate, a migrant worker is treated as a person who is granted some basic condi-
tions (a social and family status, including, e.g., the right to social benets granted by
host member states and the preservation of the integrity of family life) in order to be
able to move and integrate in any European society, while her “difference” and foreign
connections are respected.27 This is the core of what later became known as the “social
integration” approach of the Court of Justice of the European Union (CJEU) particu-
larly well developed in the eld of European citizenship.28 The notion of personhood,
in this reading, denotes a certain moral content to European law and policies, and
thus offers a means of developing an ethical foundation for European integration.
On the other hand, the Federal principle is meant to ensure that a sufcient degree
of participation and pluralism is admitted in European integration. Not by chance,
it is in the eld of “foreign affairs” that this principle is said to be best encapsulated.
It is, indeed, there that the tension between independence and coexistence between
States, and with the European institutions, is at its most acute. Moreover, this domain
remained foreign to the ERTA doctrine of the CJEU, establishing the absolute pre-
cedence of the common institutional framework in the conduct of external action.
What the authors perceive in this domain is a form of “genuine federal foreign policy,”
where the equal participation of all players is ensured.29 They argue that the principle
of unity and the doctrine of the “sole organ” in external action are less desirable than
solutions based on “mixity.”30 This example points to a broader re-elaboration of the
framework of integration which must accept and contend with the existence of a plu-
rality of legitimate subjects of representation, namely, the Member States and their
people alongside the Union.
3. Resilience
Unlike the law of integration, the ITL project started as an effort to understand, rather
than hide, the contradictions of the integration process, i.e. an effort to analyze the “resil-
ience” of the integration process in the face of recurring crises within and outside.31
But, just like with the law of integration, it becomes clear in the course of the introduc-
tion that the authors intend to reform the process so as to make it resistant to new and
27 Id. at 47–48.
28 See on this approach Loïc Azoulai, La citoyenneté européenne, un statut d’intégration sociale, in cheMIns
D’europe: MéLanges en L’honneur De Jean-pauL Jacqué 1 (Gérard Cohen-Jonathan et al., eds., 2010); Charlotte
O’Brien, Real Links, Abstract Rights and False Alarms: The Relationship Between the ECJ’s “Real Link” Case
Law and National Solidarity, 33(5) eur. L.rev. 643 (2008).
29 Cappelletti etal., supra note 1, at 60.
30 See further Joseph H.H. Weiler, ‘The External Legal Relations of Non-Unitary Actors: Mixity and the Federal
Principle’ in MIxeD agreeMents 35 (Henry G.Schermers & David O’Keeffe eds., 1983)repr. in Joseph h.h.
weILer, the constItutIon of europe. “Do the new cLothes have an eMperor?” anD other essaYs on european
IntegratIon 130 (1999); Marise Cremona, EU External Relations: Unity and Conferral of Powers, in the
questIon of coMpetence 65 (Loïc Azoulai ed., 2014).
31 Cappelletti etal., supra note 1, at 10, 31.
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456 I•CON 14 (2016), 449–463
forthcoming crises. Now the questions are: Has European integration effectively proved
to be resilient? What can be said of the European identity and the Federal principle in
today’s European Union? Iwill briey explore these two dimensions. On both counts, the
overall picture is rather disappointing. Integration has turned to frustration for its three
main subjects: the European institutions, the member states, and the individual citizens.
One of the reasons for this is certainly the difculty experienced by the European institu-
tions in departing from the traditional Pescatorian model focusing on a self-standing and
self-referential institutional and legal structure.
First of all, the development of a European identity has met with strong resistance.
While greatly expanding in scope, the integration process has not been able to connect
citizens and their representatives to Europe as a whole. Establishing a genuine European
identity would have presupposed a shift in loyalty from member states to the Union,
or at least the constitution of a strong community sharing a “collective identity” and
agreeing on principles applicable to all Union citizens. 32 However, the conditions for
such a political or social pact were never met, as illustrated by the failure of the grand
process leading to the rejection of the Constitution for Europe. This may also explain
the persistent resistance of the superior courts of member states to the project. Many
of these authoritative interpreters, while accepting their responsibility for European
integration, do not feel part of a compelling whole. The jurisprudence of the Federal
Constitutional Court of Germany on EU law, as reected in its Lisbon Treaty decision
of June 30, 2009, is a case in point. More generally, the superior courts’ resistance
has focused on the “perceived over-extension of non-discrimination, citizenship and
fundamental rights” stemming from EU law.33 Moreover, many citizens consider that
the Union does not deliver in terms of economic growth, social solidarity, and security.
The paradox is that these are areas in which the Union has only limited instruments
to intervene. Still, this development effectively results in a loss of support for European
integration, manifest in the rise of more anti-EU parties and premised on the rhetoric
of belonging to national or local communities.
The British Prime Minister’s immigration speech delivered on November 28, 2014
is an impressive conrmation of this state of affairs.34 It may be seen as a clear attack
against what ITL perceived to be the core of European identity. While reafrming the
importance for his country’s being part of the Union, Mr. Cameron called into question
the notion of personhood constructed by Union law. Basically, under EU law, individu-
als may develop in Europe a set of social relations not based on their national bonds
but organized around alternative forms of ties (mainly family and professional ties).
The continuity and permanence of these ties are secured. EU law provides an anchor
for personal identity beyond and across the boundaries of national jurisdictions. It is
32 See Cathleen Kantner, Collective Identity as Shared Ethical Self-Understanding: The Case of the Emerging
European Identity, 9(4) eur. J.soc. theorY 501 (2006); Pedro Lomba, Constructing a “We”: Collective Agency
and the European Union, in refLectIons on the constItutIonaLIsatIon of InternatIonaL econoMIc Law. LIBer
aMIcoruM for ersnt-uLrIch petersMann 97 (Marise Cremona etal., eds., 2014).
33 Damian Chalmers & Luis Barroso, What Van Gend en Loos Stands For’, 25(1) Int’L J.const. L. 129 (2014).
34 JCB Staffordshire: Prime Minister’s Speech, Nov. 28, 2014, available at https://www.gov.uk/government/
speeches/jcb-staffordshire-prime-ministers-speech.
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“Integration through law” andus 457
to these forms of identication that Mr. Cameron opposes the notion of a “common
home” or what he calls the “national club,” which should be preserved. Let us recall
that, in contrast to a pure public good, a club is, according to well-known Buchanan
theory, an excludable good, meaning that it is possible to prevent people who have not
paid for it from having access to it.35 Accordingly, Mr. Cameron suggests, both more
control on free movement of persons and the imposition of new conditions on entr y of
migrants and on access to social benets—conditions which ask for proof that those
persons have the material or cultural capacities to assimilate and that they will really
contribute to the host society.
Mr. Cameron is far from alone in upholding such a conception. It has to some extent
reached the supranational institutional world, as illustrated in the recent Dano deci-
sion of the CJEU.36 To recall, the case concerns a Romanian national living in Germany
who applied for basic subsistence benets for jobseekers. As provided by the German
Social Code, the function of this social assistance “is to enable the beneciaries to lead
a life in keeping with human dignity.” In this case, the Court seems to have lost sight of
the aim of Union citizenship, which is to ensure the integration of Union citizens into
the society of any other member state. Instead, it focused on the objective of prevent-
ing Union citizens from becoming an unreasonable burden for the host member state.
In this judgment, the Court oscillated between two approaches. One was a culturalist
approach which abandons the traditional protection of factually integrated persons
for the sake of a logic of assimilation with a view to the maintenance of the perceived
cohesion of the host society.37 This is clearly reected in the facts of the case, which
formed the undertone of the decision: although Ms. Dano enjoyed a residence certi-
cate and had a child born in Germany, it was noted that she speaks German poorly,
cannot write in German, and is not willing to integrate into the labor market. The
other approach applied in the Court’s reasoning was purely formalistic. It consisted
in relying on the condition of the applicant having sufcient nancial resources to
qualify for a right of residence under the EU citizenship Directive. There is no exami-
nation of “the personal circumstances characterizing the individual situation of the
person concerned” as part of the proportionality analysis of the case.38 There is no
proportionality analysis atall.
This decision shows how difcult it is to resist the re-territorialization of free move-
ment policies in the context of a signicant decrease in trust and harmony in the
Union, particularly in times of economic and political crisis.39 It may lead some to
conclude that integration through the free movement of persons law has to give way
to a more robust economic union in perhaps a more restricted Union.40 However, this
35 James M.Buchanan, An Economic Theory of Clubs, 32(125) econoMIca 1 (1965).
36 C-333/13 Dano, Judgement, Nov. 11, 2014, ECLI:EU:C:2014:2358.
37 On this shift in recent CJEU case law, see Loïc Azoulai, The (Mis)Construction of the European Individual.
Two Essays on Union Citizenship Law, EUI Working Paper LAW 2014/14.
38 Compare and contrast with C-140/12 Brey, Judgment, Sept. 19, 2013, ECLI:EU:C:2013:565, paras 77–78.
39 See Editorial Comments, The Free Movement of Persons in the EU—Salvaging the Dream While Explaining the
Nightmare, 51(3) coMMon Mkt L.rev. 729 (2014).
40 See, e.g., Jean-Louis Bourlanges, Identité européenne et ambition française, 147 coMMentaIre 485 (2014).
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458 I•CON 14 (2016), 449–463
conception would readily remove any reference to a community of values, which
makes space for greater self-determination and emancipation of individuals. Now, it
cannot be that the process of integration culminates in the effacement or destruction
of the emancipatory dimension of the project. Or if it does, then the way the question
of integration through law is answered leads to the destruction of the concept itself.
Second, the institutional practice seems to deviate from the Federal principle. To
recall, the Federal principle rests on the idea that European integration constitutes a
global system in which viewpoints may vary depending on the institutional level in
question but to which all participants, Union institutions, Member states and citizens,
are bound and committed, each one in its own place. The strongest claim in federal sys-
tems is the claim of commitment and loyalty made upon Member States and citizens.41
In the European Union, this is mainly reected in Article 4(3) of the Treaty on the
European Union (TEU) and the principle of loyal cooperation as developed by the case-
law of the Court.42 It consists of a principle of sincere cooperation, full mutual respect
and a duty of mutual assistance. However, we are now experiencing the development
of some disturbing phenomena which affect many aspects of integration, but are per-
haps most visible in the eld of the Economic and Monetary Union. In the context of
the Europe’s economic crisis, member states and European institutions have come to
occupy positions not assigned to them by constitutional framework of theUnion.
The practice pulls in two opposite directions. On the one hand, we see the develop-
ment of a set of institutional relations that are directly concerned with the objectives
and values of the Union, and yet seek to distance themselves from the EU framework.
Aparallel relational space has developed in which member states’ and the Union’s
institutions develop their actions outside the EU institutional and legal framework
(relying on international treaties, contractual arrangements, domestic private law
regimes).43 This shift towards new forms of action and new procedures reects dis-
trust towards the EU institutional machinery and its effectiveness. However, it reects
more broadly a lack of commitment to the idea of the EU as a whole, that is, to the
idea that the Union is more than the sum of its parts. True, these new mechanisms
often mention EU law as a condition for their validity, and may involve EU institutions
in their operation, as was made clear in the Pringle judgment.44 However, these refer-
ences are a further manifestation of the impoverishment of integration through law.
In this context, EU law refers to strict nancial conditionality and to a rigid system
of monitoring. Structural principles of EU law, such as protection against an imbal-
ance of power, democratic accountability, and judicial review, are being sacriced.
Signicantly, in Pringle, just like in the Dano case, any reference to fundamental rights
has been completely discarded.
41 Daniel Halberstam, Of Power and Responsibility: The Political Morality of Federal Systems, 90 va L.rev. 731
(2004).
42 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European
Community, Dec. 13, 2007, 2007 O.J. C 306/1.
43 See further Loïc Azoulai, Appartenir à l’Union européenne. Liens institutionnels et liens de conance dans les
relations entre États membres, in LIBer aMIcoruM en L’honneur De vLaD constantInesco 27 (2015).
44 Case C-370/12, Pringle, Judgment, Nov. 27, 2012, ECLI:EU:C:2012:759.
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“Integration through law” andus 459
On the other hand, we can observe the Union or its executive organs interfering in
areas where member states are supposed to enjoy some autonomy.45 Heavily central-
ized intervention enhancing the power of the European Commission and EU agencies
is taking place.46 This is what has been called a system of “executive federalism.”47 This
sort of federalism is alien to the “Federal principle” evoked by ITL. Here, cooperation
among actors and representative institutions is replaced by monitoring compliance and
executive dominance. In both cases, regardless of whether involving avoidance of the
EU framework or strengthened centralization within the EU framework, the normative
assumptions underpinning the operation of the law in the EU context are undermined.48
The EU principle of democracy and the traditional ethos of sincere cooperation, mutual
respect, and mutual assistance are hardly compatible with this development.49
In a way, these observations on the changes affecting European identity and the
Federal principle lead to the same outcome: a profound transformation of the process
of integration. This transformation is not equivalent to disruption. Secession does not
appear to be seen as a feasible option even if there may be a temptation to exit the
Union in some quarters. Resistance to further integration is just another way of relat-
ing to Europe. Yet, it is no longer integration through law in a classic sense. In both the
Dano and the Pringle cases, what is left of law is a body of rules without an ethos. What
is left of integration is a form of factual interdependence within the Union without a
deep sense of mutual membership.50 So the challenge of integration today is to build
a relational space that reects more than mere economic, legal and political interde-
pendence and a law that does not consist mainly of technical and nancial conditions.
It is not a matter, in my view, of returning to the foundational values of the EU.
It has been made plain, Ithink, that the broad nalités of integration are no longer
driving forces. To a certain extent, Ifollow Joseph Weiler who suggests that the spiri-
tual dimension of the European project is exhausted.51 The condition of integration
is “without nal destination.”52 How, then, do we think about a sustainable process
45 A good illustration is provided by the Council decisions addressed to Greece in the course of the Euro-
crisis: see Roland Bieber, The Allocation of Economic Policy Competences in the European Union, in the
questIon of coMpetence, supra note 30, 86.
46 See Paul Craig, Economic Governance and the Euro Crisis: Constitutional Architecture and Constitutional
Implications, in the constItutIonaLIzatIon of european BuDgetarY constraInts 19 (Maurice Adams, Federico
Fabbrini & Pierre Larouche eds, 2014).
47 Damian Chalmers, The European Redistributive State and a European Law of Struggle, 18(5) eur. L.J. 667
(2012); Christian Joerges, Europe’s Economic Constitution in Crisis and the Emergence of a New Constitutional
Constellation, 15 gerMan L.J. 985 (2014).
48 See Marc Dawson & Floris de Witte, Constitutional Balance in the EU after the Euro-Crisis, 76(5) MoD. L.rev.
817 (2013).
49 This is so despite statements to the contrary by the CJEU: see somewhat indirectly but strikingly the recent
C-409/13, Council v.Commission, Judgment, Apr. 14, 2015, ECLI:EU:C:2015:217.
50 Editorial Comments, Union Membership in Times of Crisis, 51(1) coMMon Mkt L.rev. 1 (2014).
51 Joseph H.H. Weiler, Deciphering the Political and Legal DNA of European Integration. An Exploratory Essay, in
phILosophIcaL founDatIons of european unIon Law 137 (Julie Dickson & Pavlos Eleftheriadis eds, 2012). See also Neil
Walker, After nalité? The Future of the European Constitutional Idea, EUI Working Paper, LAW No. 2007/16.
52 Daniel Augenstein & Jennifer Hendry, The “Fertile Dilemma of Law”: Legal Integration and Legal Cultures in the
European Union, Tilburg Institute of Comparative and Transnational Law Working Paper 2009/06 WP.
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460 I•CON 14 (2016), 449–463
of integration involving European institutions, the member states and the citizens
without positing a “whole” enshrined in its law—be it a telos or an ethos? This has
become the central question for us today. Arguably, there are three possible solutions.
The rst is to abandon altogether the legal dimension of European integration and
rely on other dynamics, such as high politics,53 traditional routine politicization,54 or
social movements. The second option is to keep defending the traditional legal model
by exhibiting its formal qualities but with a risk of being purely decontextualized
and largely ineffective.55 The last option is to rethink integration through law in light
of current social and political conditions. To make sense of this project, we need to
understand, and attend to, the complex set of relations that constitute integration.
These relations are made of trust and distrust toward the European Union, engage-
ment with the European order and vindication of national identities or local cultures
and values, integration as well as disintegration. My suggestion would be to rethink
integration as a regime for dealing with a kind of “relationality” which is no longer
sustained by a self-standing and self-referential structure without being a purely fac-
tual interdependence. This is a kind of relationality involving distinct cultures, values,
particular beliefs, and local sensibilities.
4. Rethinking integration through law in ourtime
The challenge is twofold: it is both substantive and methodological. The former con-
cerns the reality of European integration and its meaning, the latter concerns the way
to approach it. Both issues are closely related.
One way to engage methodologically in the exercise of rethinking integration is
to turn the ITL project into a critical project.56 Various authors are now at work try-
ing to make clear that, under the current conditions of integration, the relations
between member states and individuals in Europe may become distorted. The action
of EU institutions as well as the joint action of the member states may well generate
imbalances of power and the dominance of some states over others, while integra-
tion structurally favors certain groups of people and negatively affects others who
bear the consequences of EU law through the policy choices that are made internally
to adjust to it. Subordination, inequality, and alienation are an integral part to this
process. As a result, what has long been seen as mainly a technical legal process is
now perceived as a question of social protest. This situation points to a need for ana-
lytical critique.
53 Luuk van MIDDeLaar, the passage to europe (2013).
54 Simon Hix & Stefano Bartolini, Politics: The Right or the Wrong Sort of Medicine for the EU?, Notre Europe
Policy Paper 2006/19.
55 See, e.g., Koen Lenaerts, The Court’s Outer and Inner Selves: Exploring the External and Internal Legitimacy of
the European Court of Justice, in JuDgIng europe’s JuDges: the LegItIMacY of the case Law of the european court
of JustIce 13 (Maurice Adams etal. eds., 2013)and see the critique of this approach by Joseph H.H.Weiler
in his Epilogue, in JuDgIng europe’s JuDges, 235.
56 This is the path suggested by Joseph H.H, Weiler in Epilogue, in “IntegratIon through Law” revIsIteD. the
MakIng of the european poLItY 175 (D. Augenstein ed., 2012).
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“Integration through law” andus 461
No doubt we are witnessing a “critical turn” in contemporary EU legal studies.
It takes two forms. One form of critique considers that, while the project of inte-
gration is well designed to serve legitimate interests, especially new forms of indi-
vidual emancipation, in practice it does not deliver the expected outcome. This is so
for institutional, structural, and practical reasons but also for conceptual reasons.
What is missing is a clear articulation of the deep philosophical foundations of the
project. The core of this critique is captured by Andrew Williams stating that “the
existing philosophy of EU law rests upon a theory of interpretation at the expense
of a theory of justice.”57 By “theory of interpretation” it is meant a mode of opera-
tion of EU law relying on teleological methods of interpretation and self-standing
instrumental principles. The call for a “theory of justice” refers, instead, to the
development of foundational principles. Depending on the diagnosis and aims of
the critique, this re-foundation develops as political theory, moral philosophy, and
theory of values or social justice theory for the European Union.58 An alternative
form of critique goes beyond this and argues that the operation of EU law is inher-
ently distorted. For example, what is presented as an emancipatory project would be
in fact a form of empowerment of individuals which amounts to nothing else than
a form of alienation through subordination to imposed economic performance cri-
teria.59 EU law negatively affects forms of life—what makes the value of our life in
European societies.60 This form of critique calls for a fundamental transformation of
the design and techniques of the European integration project, making its law more
sensitive to social interests and local particularities.
We must give credit to these critical approaches for helping us become aware of
the many distorted forms of relations that characterize the integration process. If the
concept of integration through law is to be maintained, we need to openly look at
integration as a complex eld without disavowing the forms of distortion in political,
economic, social, and legal relationships. Yet, an approach exclusively concerned to
deconstruct the operation of law risks obscuring the question of law as a construc-
tive technique. Absent a strong sense of political community, law as a special mode of
connecting state organs with Europe as a whole or of allowing individuals to live, at
least partially, in social and moral conditions which denote a far-reaching European
society is a question that is still at issue for the enterprise of integration. Accordingly,
EU legal scholarship needs to engage in a reconstructive approach. There are already
57 Andrew T.Williams, Taking Values Seriously: Towards a Philosophy of EU Law, 29(3) oxforD J.LegaL stuD.
549, 552 (2009).
58 The idea of a political refoundation is developed by Jürgen haBerMas, the crIsIs of the european unIon.
aresponse (Ciaran Cronin trans., 2012). The idea to provide the Union with moral foundations may be
found in anDrew t.wILLIaMs, the ethos of european IntegratIon: vaLues, Law anD JustIce In the eu (2010).
The concern for a social justice decit of the EU is reected in Floris de Witte, Transnational Solidarity
and the Mediation of Conicts in Europe, 18(5) eur. L.J. 694 (2012); Andrea Sangiovanni, Solidarity in
the European Union, 33(2) oxforD J.LegaL stuD. 1 (2013) 219; and more generally in DIMItrY kochenov,
graínne De Búrca, & anDrew t.wILLIaMs, europe’s JustIce DefIcIt? (2015).
59 Alexander Somek, Europe: From Emancipation to Empowerment, LSE Europe in Question, Discussion Paper
Series, Paper No. 60/2013.
60 Gareth Davies, Internal Market Adjudication and the Quality of Life in Europe, EUI Working Paper 2014/07.
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462 I•CON 14 (2016), 449–463
candidates. One is “doctrinal constructivism.”61 Another one is “constitutional plural-
ism.”62 Both follow ITL in two essential ways. First, they aim to avoid what they per-
ceive to be the confusion of two levels of analysis in traditional EU legal scholarship:
the descriptive and that of normative justication. Second, they reject the functional-
ist and material approach they associate with Pescatore’s law of integration. However,
what these approaches concretely signify in terms of analysis is not entirely clear. Our
concern should be to build on this to give light to new approaches. We must attempt
to develop an approach which gives credit to the legal categories and instruments that
allow such a thing as integration to exist whilst constantly bringing into question the
political and cultural preconceptions through which we look atit.
This new methodological approach relates to the substantive challenge. European
integration can no longer rely on the basis of the traditional assumption that law is the
natural cement that holds the member states, their peoples, and social and legal struc-
tures together. To make sense of integration through law implies, in the current context,
two conceptual shifts. First, the meaning of integration should not be reduced to the legal
operation whereby states confer powers to the European institutions and make use of
these institutions to advance the objectives they have in common. Rather, integration
should be taken as primarily to refer to transfers of loyalty amongst member states and
their peoples as part of a common whole. Absent a strong sense of trust in the EU insti-
tutional machinery, it may be that the question of how to conceive of the Union depends
upon the trust that member states and their peoples place in each other. No integration
project is sustainable in the absence of some form of concrete mutual trust. This means
reconguring the relationships of the parts to the whole. Asupranational whole is no
longer credible. We should rather be attentive to all forms of interconnectedness among
states, state constituent entities, and more broadly between the Union citizens. The recog-
nition of interconnectedness is the precondition for mutual trust.63 Second, integration
does not simply boil down to the legal requirement of cooperation in a spirit of loyalty. It
cannot simply mean abiding by the most fundamental and abstract rules of EU law and
referring to a coherent whole.64 It means assuming a form of responsibility for the choices
made individually or collectively and for the concrete consequences of these choices
throughout the Union. This clearly departs from the abstract concept of individual and
limited responsibility of Member States enshrined in the Treaties (Article 125 TFEU) and
reected in the German Constitutional Court’s jurisprudence on the euro-crisis law.65
61 von Bogdandy, supra note 10.
62 kLeMen JakLIc, constItutIonaL pLuraLIsM In the eu (2014).
63 See Hans-Dieter Klingemann & Steven Weldon, A Crisis of Integration? The Development of Transnational
Dyadic Trust in the European Union, 1954–2004, (2013) European Journal of Political Research 457 (2013).
64 This model of membership is to be found originally in Cases 6/69 & 11/69, Commission v.France,
Judgment Dec. 10, 1969, ECLI:EU:C:1969:168.
65 See BunDesverfassungsgerIcht (Bverfg) [feDeraL constItutIonaL court], Sept. 12, 2012, 2BvR 1390/12
etal. (on the Treaty establishing the European Stability Mechanism); BVerfG, Order, Jan. 14, 2014 2BvR
2728.13 etal. (on the OMT Decision of the Governing Council of the ECB). More generally, see Peter-
Christian Müller-Graff, The Legal Readjustment of the European Economic and Monetary Union, in the rIsIng
coMpLexItY of european Law 207 (Peter-Christian Müller-Graff & Ola Mestad eds., 2014).
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“Integration through law” andus 463
This concept does not allow us to identify positive and negative external factors produced
by the decisions taken locally throughout the Union. The recognition of external factors
is the precondition for assuming responsibility.
Transfers of loyalty and forms of collective responsibility are the critical conditions
under which interdependence may turn into mutual membership. The challenge is to
nd those legal structures and to trace those legal relationships which are capable of
generating these conditions. As EU lawyers, we must ask not whether mutual trust
and overall coherence can be somehow assumed as and when EU law operates, but we
should ask whether Union law is capable of generating the preconditions necessary to
foster genuine collective action. This is the only way for us to continue making sense of
the experience of integration as a whole now that the possibility of referring to a grand
structural plan or to a compelling ethical rule is no longer available.
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