The Triumph of EU Law in Context?

Whereas law-in-context analyses of Community law were relatively rare in the early 1990s, they seemed to flourish from that point onwards. The financial, economic, fiscal and political crises that hit Europe from 2007 are occasionally taken to have proven the relevance of contextualist analyses of EU Law. If only because if one wants to understand one of the many memoranda of understanding or to comprehend the reasoning of the German Federal Constitutional Court or of the European Court of Justice in their momentous rulings on the fiscal crises, one is forced to go beyond the mere exegesis of legal norms. One has to focus on the political visions and economic interests that underlie the said legal norms when interpreting and applying them. Therefore, and unsurprisingly, even “mainstream” journals, such as the Common Market Law Review, now strive to attract pieces that combine legal analysis with social, political or economic insights.
Does that mean that we are all “contextualists” now? Not in my view. Anybody who has travelled around France is bound to be familiar with the SNCF signal that reads “Un train peut en cacher un autre”. My point is that the train of the apparent success of law in context in European studies hides another train, the train of the persistence of the basic assumptions about the role of law and of legal scholars which have been characteristic of EU law mainstream scholarship. True, legal analysis has been combined with insights from other social disciplines. That is definitely to be welcomed. However, EU legal scholarship has stood fast to the characterization of EU law as essentially a neutral arbiter, somehow au dessus de la mêlée. Something which is simply incompatible with taking law in context seriously.

The latency of the concept of law at the heart of EU law mainstream jurisprudence

In fact, what we have witnessed is a partial, and essentially more formal than substantial, triumph of law in context. Let me briefly provide you with four reasons why a formalistic concept of law, and of the role of law in European society, persists.

First, EU law scholars keep on having a boundless faith on what EU law can do as a means of social integration, without reflecting enough on its limits. This is reflected, for example, in the wide acceptance of the claim to supremacy of EU law, which implies acknowledging EU law a legal force superior to that of any national legal norm, including constitutional norms. This is different, it should be noticed, from the claim to primacy, where the ultimate validity of legal norms, and of Union law, rests on national constitutional norms. While the morphing of primacy into supremacy has long been in the making, the shift became completely explicit through the Polish rule of law saga. Now, it is perfectly possible to be deeply and extremely concerned with “democratic backsliding” in several EU Member States and be doubtful that the solution to such a problem is to be found in the judicial affirmation of the supremacy of European Union law. Not only tragic cases may make bad law, but it is important to realise that EU law cannot be supreme, neither in normative nor in functional terms.

This is so because not only the EU is an incomplete polity, lacking the institutional and material resources to stabilize its environment, but also because the EU wants the sources of direct (democratic) legitimacy necessary to make the claim stick. Legal arguments about the supremacy of EU law in the European legal space will not help solving the social conflicts à propos which the claim is raised. Indeed, what has always been a political problem, even if one with admittedly massive constitutional and legal implications, only has started to be solved when the balance of political power changed in Poland. This is just one spectacular case in which EU law has met its limits.

Second, as Francis Snyder highlighted thirty years ago, EU legal scholarship remains exceedingly focused on the institutional and procedural aspects of EU law, while it tends to neglect the analysis of the substantive content of supranational norms (including, funnily enough, socio-economic norms. And what substantive problems are discussed as if what was at stake was the allocation of competences or procedural correctness. Thus, non-conventional monetary policies of the ECB are discussed by reference to the mandate of the ECB enshrined in the Treaties, and not as part of the epochal transformation of the role of the state and in particular of central banks in post-crisis financial capitalism. In general, the development of EU law appears in the textbooks as not decisively marked by changing social, economic, political and cultural factors; rather the trajectory of EU law corresponds to the unfolding of an original (and neutral) project, enshrined in the founding Treaties, which would had an intrinsic emancipatory character. It is thus a history of continuity, not of cesuras, breaks and discontinuities, as is typically the case in constitutional history. And it is a whig history, a history in which the advance of EU law makes European society better, fairer and more inclusive.

Third, there is a general tendency to assume in an acritical fashion the very concepts with which we reconstruct and analyse EU law. We need critical self-reflection on what the law of integration and integration through law were objectively doing when Eurojurists coined concepts with which they conceptualised a “new legal order”; or made use of concepts sharpened in federal systems to analyse and reconstruct EU law. The objective result, whatever the subjective intentions, is the familiarisation and naturalisation of concepts such as European citizenship, supremacy/primacy, effet utile, sound budgetary policy or sound money, which are presented to students as if they were the technical baggage characteristic of EU law, cloaking in plain sight their social, political, cultural and economic genealogy.

Fourth, the questions which are deemed relevant and are placed at the core of the research agendas tend to be those which are regarded as such by European institutions. A phenomenon which may not be completely dissociated from the key funding role played through the years by those very same institutions.

A new research agenda for EU Law

All European legal scholars may be contextualists now, but we have seen in the previous sections that that is so only in a limited and partial sense. The truncated triumph of law in context can only become a complete one if we renew the contextualist methodology. In what remains of this post, I want to suggest the first two steps of the many required to reach that goal.

Towards a non-whig history of EU law

As I already hinted at, mainstream EU legal scholarship is characterized by its “whiggism”, or what is the same, the history of EU integration is regarded as a normative triumph, as a history of progress. There is no room for nuances, and even less for a critical reappraisal of European integration and of EU law itself.

A non-whiggish EU legal scholarship should normalize the history of European law, something which requires regarding it as being shaped by the same social, political, economic and cultural forces which play out in any legal history, starting with national legal histories. Once we do so, we will realise that EU law is bound to be ambivalent from a normative perspective. In particular, when considered from the standpoint of the Democratic and Social State, it is important to keep in mind that EU law has played both the role of a facilitator of the development of the Democratic and Social State, and a constraint limiting when not undoing the Democratic and the Social State. The consolidation of the Democratic and Social State was facilitated by European integration as unfolded in the fifties and sixties, and part of the seventies, because it allowed the simultaneous growth of external trade and the build-up of the power of states to shape their socio-economic structure in line with their politically selected social, economic, cultural goals. However, the Communities became a deeply ambivalent force in its relationship to the Democratic and Social State already in the late seventies. By means of unleashing the power of capital holders from the late 1970s, Community law created the conditions under which the latter were empowered to make use of their rights to private property and entrepreneurial freedom to constrain when not undo the basic institutional structures of the social state. This shows that European integration per se is not an unqualified blessing or for that matter, an unqualified curse. Consequently, the key question is not whether there is more or less EU law, but what are the point and purpose of that European Union (ie which EU and which EU law to do what).
Allow me to add that a key part of the process of normalization of the history of European integration would be to set the EU in its wider, global context. Two main challenges have already emerged in the historiographical literature.

The first is far from new and concerns the decisive external constraints that shaped the process of European integration. In the aftermath of the Second World War, Western Europe operated under extremely strong military and geopolitical constraints. To this day, to make sense of European defence and foreign policy one must take seriously the limits stemming from the symmetric relationship between the United States and the EU.
The second challenge remained scandalously subdued until recently. It is clear that we cannot make sense of the history of Europe without paying due attention to the phenomena of imperialism and neoimperialism. Hansen and Jonsson’s “Eurafrica” and Brown’s “The Seventh Member State” have rendered impossible to miss the extent to which the same can be said of the European Union. Imperialism and neoimperalism are not part of the past of European integration, but, unfortunately, part of its present. It suffices to consider the complex arrangements sustaining the CFA Franc, which, at the very least, can be said to create a series of bonds which are, to say the least, not evidently beneficial to the participating West African states.

Two Blind Angles

There are many blind angles of European law. Allow me to focus on two: care labour and the status of third country nationals and refugees.
Perhaps the most obvious example of a social problematique which has been neglected by European law scholarship is care labour. EU law was built on the basis of a very traditional understanding of work in what may be referred as standard Fordist terms. True, the case law in the 1970s seemed to be leading to an expansion of the very concept of worker. Such transformation, however, was arrested by a double change. First, EU citizenship was said to render the whole discussion obsolete from the early 1990s, as all EU citizens, and not only workers, were supposed to enjoy EU rights (a far from irrelevant delay applied to the “new states” joining in 2004 and 2007). Secondly, the ECJ put forward a new and even more problematic enabler of Union rights in the 2010s: the “economically active”. As a result, EU citizenship has not resulted in a politicization of the European personal status, but rather the economically weakest parties (mostly women) have seen their protection slip through their fingers (while posted workers kept on receiving lower wages and enjoyed lesser protections than residents and nationals). It is high time that EU law scholarship considers the ways in which EU law both reflects and shapes our understanding of work, and what impact this has in caring labour and work. We should start by recognizing that without care, no society is possible.
On what concerns the need of adopting different perspectives on well-established subjects of research, perhaps that is especially urgent on what concerns the area of freedom, justice and home affairs, not least on what concerns migration and asylum policy. The latter policies have systematically been approached through the prism of national and/or internal security. This accounts for example for the fragmentation of the status of third country nationals, with so disparate regimes as those proper of the holders of “blue cards” on the one hand, and of seasonal workers, on the other (the latter expected to physically leave the territory of the EU for at least 6 months every year, when they have no economic resources to do so). If we want to honour our normative commitments, we have to start to look at those issues also from the perspective of the forced migrants entering European territory.