Economic law, inequality, and hidden hierarchies on the EU internal market

The concentration of global wealth, power, knowledge, authority and prestige continues unabated. Antitrust enforcement has been at the heart of debates on combating increasing inequality. Yet, the transformation possibilities have been overstated, while its impact has been paralyzed by widespread assumptions about both antitrust and international trade analysis. Challenging "market power" or "capital accumulation", as per Thomas Piketty's analysis, may contribute to the reproduction of concentration of power. This article cautions about the viability of the current antitrust and international trade assumptions and doctrines to tackle the challenges of growth and injustice of today’s globalized society. It argues that the hierarchical structure of production in goods, services, knowledge, and prestige in global society should be the starting point of legal and economic analysis. Lawyers should articulate targeted resistance to particular hierarchies using antitrust and trade law as updated tools. As an example of this analysis, this article describes a privilege to harm, enjoyed by companies from the structural center of Europe against firms on the periphery. This privilege is termed: dumping by the center. This analysis provides one explanation for the increasing wealth and power in the center of the European Union, despite the Union's promise of development for all. While developing this doctrine, several assumptions of antitrust and trade law are challenged, including the coherence of the consumer welfare standard, the benefits of low prices and the assumption that non-predatory dumping on the internal market is not possible. The article also challenges the sensibility that economic thinking is the main culprit in the concentration of power and economic impoverishment of some parts or sections of the world. Rather, what needs to be challenged is the existing understanding of injury, in economic thinking just as much as in thinking about equity or fairness. The article concludes that a combat against the concentration of wealth, power and prestige requires a step outside the existing antitrust and trade paradigm and needs to address the disparity in the global allocation of privileges to harm

Brexit - a tragic continuity of Europe's daily operation

The British vote to leave the European Union came as a surprise and a shock. It has been understood as an aberration, as a triumph of populism and nationalism, in conflict with the ethos of the Union. But Brexit should not be understood as a mere aberration, but instead as one position on continuum of exhausted thinking about EU and (transnational) law in general. From the perspective of "pure" legal theory, Brexit is self-referential, resulting from the internal dynamics of the system. It is a result of the general lack of legal and economic imagination as to how the EU should be reordered and reimagined

Peaceful contestation

Polycentricity implies the diffusion of sovereignty over several levels of governance and numerous institutions. It envisages an explicit role for non-governmental bodies, such as private and community-based organisations and it puts the individual at the heart of society and social construction. Polycentricity presents a normative alternative to federalism, multilevel governance that prioritises self-governance, or individual autonomy, as a goal. Peaceful contestation plays a special role within the polycentric theory, a role of an institutional essential. This means that peaceful contestation needs to be constantly enabled in a polycentric society in order for the society to be able to maintain its polycentric character. Peaceful contestation is the peaceful challenge of any existing legal and political situation in view of ensuring the values of polycentric theory, particularly self-governance. Polycentric theory and peaceful contestation thus need to be understood dynamically: many decision centres with autonomous and limited prerogatives need to be able to and should in fact constantly contest existing norms and policies as well as their own autonomy and prerogatives. NGOs, cities, individuals, corporations, states or expert groups are just some of the loci of decision making and contestation that are involved in a constant reconfiguration of society. Once this dispersed process of social reconfiguration stops or is limited, the system will revert to another type of pluricentric governance, such as federalism or multilevel governance. This chapter sets out the notion of peaceful contestation within the framework of polycentric theory. Part I discusses the most important premises of peaceful contestation as addressed in the framework of the polycentric theory, and the notion of ‘peaceful’ contestation within that framework. Part II discusses the realisation of the goal of polycentricity – self-governance – through peaceful contestation within the framework of the theory of polycentricity. It develops the notion of ‘trust-producing conflicts’ and the notion of a social actor or ‘public entrepreneur’, explaining the role of a public entrepreneur with an example of an infringement procedure of the European Commission. Part III concludes. The overall aim of this chapter is to develop an ideal type of peaceful contestation that is needed for the maintenance of a polycentric system, one that prioritises self-governance or individual autonomy

Not Quite Right: Representations of Eastern Europeans in ECJ Discourse

Although the increasing responsiveness of the Court of Justice of the European Union (the ‘ECJ’) jurisprudence to western Member States’ concerns regarding Central and Eastern European (‘CEE’) nationals’ mobility has garnered academic attention, ECJ discourse has not been scrutinised for how it approaches the CEE region or CEE movers. Applying postcolonial theory, this article seeks to fill this gap and to explore whether there are any indications that ECJ discourse is in line with the historical western-centric inferiorisation of the CEE region. A critical discourse analysis of a set of ECJ judgments and corresponding Advocate General opinions pertaining to CEE nationals illustrates not only how the ECJ adopts numerous discursive strategies to maintain its authority, but also how it tends to prioritise values of the western Member States, while overlooking interests of CEE movers. Its one-sided approach is further reinforced by referring to irrelevant facts and negative assumptions to create an image of CEE nationals as socially and economically inferior to westerners, as not belonging to the proper EU polity and as not quite deserving of EU law’s protections. By silencing CEE nationals’ voices, while disregarding the background of east/west socio-economic and political power differentials and precariousness experienced by many CEE workers in the west, such racialising discourse normalises ethnicity- and class-based stereotypes. These findings also help to contextualise both EU and western policies targeting CEE movers and evidence of their unequal outcomes in the west, and are in line with today’s nuanced expressions of racisms. By illustrating the ECJ’s role in addressing values pertinent to mobile CEE individuals, this study facilitates a fuller appreciation of the ECJ’s power in shaping and reflecting western-centric EU identity and policies. Engaging with such issues will not only allow us to better appreciate—and question—the ECJ’s legitimacy, but might also facilitate a better understanding of power dynamics within the EU. This study also makes significant theoretical and methodological contributions. It expands (and complicates) the application of postcolonial theory to contemporary intra-EU processes, while illustrating the usefulness of applying critical discourse analysis to exploring differentiation, exclusion, subordination and power within legal language

The realist trend of the Court of Justice of the European Union

This Article seeks to explain the rationale behind the recent jurisprudential turn of the Court of Justice of the European Union. It identifies an enhanced trend to legal realism and articulates its three main propositions through an exploration of competition law, state aid law and trade mark law. Vigorous engagement with social fact and analytical clarity, the fundamental contributions of the Court’s realist trend, lead to knowledge and ensure that normativity, anchored in the goals and values of the Union, can gain its full thrust. Further, decoupling a more economic approach from the realist approach reveals its independent normative value. The enhanced turn to realism represents a qualitative leap of the Court’s overall judicial analysis, and is vital for effective judicial review. The Court’s realist trend thus importantly serves the right to effective judicial protection, as foreseen in Article 47 of the Charter, by avoiding arbitrariness and error in law. Any departure from the three realist propositions, for example for the sake of increased administrability, thus carries an important social cost. Bearing these insights in mind, the described trend is also of broader importance to any field of European Union law

The legal profession's responsibility for Brexit

This chapter argues that Brexit is a collective failure of the legal profession. The existing legal narrative of the European Union implies that power relationships reflect the division of institutional and sovereign competences. This misrepresentation was passed onto the general public who framed their personal frustration in this conventional narrative and demanded “taking back control”. The vote for Brexit resulted from a combination of four key features of this narrative - the ethos of interdependence, the promise of inclusion of the other, the claim of people’s political incapacity and the policymaking in terms of the extent of national sovereignty. This framework does not offer an explanation of the United Kingdom’s true position in the Union and in the world as well as gives false hope to those belittled and excluded. This chapter suggest an alternative account of the Union and calls for a new research agenda needed for the future of Europe – inquiring into the role of lawyers in the deconstruction of the European Union

Antitrust law and inequality - time for a paradigm change

The debate about antitrust and inequality reveals that increased antitrust enforcement and equality are not necessarily connected. It further reveals that there is a lack of evidence on antitrust enforcement’s impact on society, including on its ability to increase the pie for the world as a whole. Antitrust law is thus ripe for a paradigm shift if it is to play a serious role in combating abuse of power and the reproduction of concentration of wealth in the twenty-first century. Antitrust lawyers should articulate targeted resistance to particular hierarchical structures rather than pursue abstract goals of equality or competition and articulate new tools for addressing the reproduction of wealth and power in society. This requires the amendment of some of the assumptions of antitrust law, for example, the benevolent effect of low prices, the current understanding of power and the existing understanding of injury

Hierarchies as law

Where do we start when thinking about law and social transformation and how do we articulate and address resistance to the reproduction of the concentration of power, wealth, authority, and prestige in the world? Contemporary legal argument still too often relies on theories and on conceptual thinking. Alternatives are presented as anti-neoliberal, anti-capitalist, anti-efficiency, anti-free-movement, anti-imperialism, anti-autonomy, anti-economics, and anti-law. I critique the Third World legal scholarship for its lack of an adequate picture of subordination and for misrepresenting power and the center-periphery relationship. Economic theories or capitalism are mere signifiers for the (hierarchical) reality that needs to be constantly constructed and reconstructed. I further argue that democratic theory is unable to adequately address social change and that both constitutional theory and critical legal thought often misrepresent power relationships. Reliance on false distinctions is too often a part of scholarly endeavour. David Kennedy, for example, relies on Karl Polanyi's distinction between politics and economics, a typical example of conceptualism of contemporary legal thought that distinguishes between protectionist and autonomy claims or theories. Rather than pursuing one or the other type of claim, the question should rather be whose protectionist and whose autonomy claim we are pursuing. Law is often understood as the problem, and political capacity and contestation as the solution to social problems. David Kennedy’s project of expertise, mistakenly perceives political incapacity as the central problem of global governance. I argue that his work does not adequately address structural subordination, and misrepresents power, ideology, center-periphery relationship and governance. It also frequently restates the public-private distinction. The problem of today’s globalized society is not “economic interests,” nor is the central problem the lack of the political. Nor can critique be the goal of our work, as David Kennedy suggests. Instead of a pursuit of “the political” or challenging “the economic,” instead of resisting particular claims or theories, we need to resist unjust—hierarchical—reality. How do we construct and reconstruct reality? I argue that law and governance should be understood as a plethora of hierarchies, as a constant hierarchical struggle. There are three elements of the legal structure: hierarchies (constituted by injury and recognition), ideology, and tools. Injury and recognition are the lowest common denominator of the legal structure and of global governance. Social change should be understood as a reversal of the existing global hierarchical structure. Center-periphery relationship is a macro relationship of micro hierarchies. Tools need to be constructed that reflect and resist the injuries we have not yet unearthed or those we simply disregard, such as a doctrine of goods dumping on the internal market that I am proposing