The Competence to Create an Internal Market: Conceptual Poverty and Unbalanced Interests

The measures taken by the EU to create an internal market continue to be among the most impactful, politically inflammatory, and contentious of all its actions. The role of the law in this is, at least, four-fold. Firstly, it should be functional: it should have a clear and practical nature which allows it to be used for its purposes, and to achieve those purposes. Secondly, it should provide concepts and a framework which encourage substantively good results, by ensuring that relevant interests are adequately represented in the legal and legislative processes. Thirdly, it should provide limits: the EU is a creature of conferred powers, and the legitimacy of those powers is partly dependent upon them being defined in a way that does not unduly undermine residual national competences and amount to an open-ended conferral. Fourthly, the law should provide the basis for a legitimating discourse. It should contain principles and concepts which make evident that what is permitted or prohibited is so for good reasons. It should, in short, contain persuasive reasons for the scope of EU power.

The suggestion in this chapter is that only the first task is done adequately. There is a generous mandate provided to the legislature to adopt rules, and relatively limited constraints on its functional freedom. However, what the law does less well is provide balance, limits, or legitimating language. As the Court has interpreted them, internal market competences are overly focussed around EU goals, and not enough around affected national interests; they lack meaningful limits; and the law framing them displays a conceptual poverty which makes the internal market seem perhaps even more unbalanced than it is.