In this troubling and wise book on the European Union (EU), Alexander Somek puts forward a provocative reconstruction and assessment of the jurisprudence of the European Court of Justice (ECJ) and of the policy advocated by the European Commission. The core claim of Individualism is that magistrates and Eurocrats are slowly but steadily driving European polities away from the basic tenets of the democratic Rechtsstaat and into forms of inverted authoritarianism. Through a handful of leading cases and through a myriad of “soft law initiatives,” the idea of a government of laws and the normative dignity of a constitution authored by the people is being subverted. Indeed, the democratic constitution is in the process of being replaced by a congeries of norms aimed at the pragmatic realization of the ideal of a free market inhabited by apolitical individuals.
This is the peculiar European road to Tocquevillian individualism through the mirage of absolute freedom, through liberty unencumbered by political ties and loyalties toward a particular national community. At some points, the reader senses that this is a detail in what the author conceives of as the larger fresco of the history of modernity (or to be more precise, of how modernity has gone awry). Indeed, the logical conclusion of the book (even if not physically at the text's end) is the extremely somber passage in which Somek claims that “[t]he ideas of the French Revolution finally seem to be lost in Europe. The age of modern constitutional law is coming to its conclusion” (p. 243).1 Striking a very dissonant note, the author thus claims that the usual Kantian optimism about the emergence of a “new” and “cosmopolitan” European order is, at best, delusionary. There is a very dark side to European integration besides the rough and tumble of referenda.
This grand argument is rendered powerful by the gusto with which the author moves across disciplinary borders. Indeed, the book is at least three things at the same time, namely: (1) a politico-theoretical assessment of the basis of legitimacy of European constitutional law, as it stands; (2) a constitutional and normative assessment of European policy making, with a special focus and emphasis on the Commission; (3) a critical and original legal-dogmatic reconstruction of some of the leading constitutional cases of the European Court of Justice.
The core of the disheartening thesis of Individualism is that the judges sitting in Luxembourg and the Eurocrats mingling in the Bruxellois buildings of the Commission would transform not only the concrete substance of supranational and national fundamental laws (as the standard narrative goes) but also the very structure of social integration in the old Continent. While the Court's rulings and the Commission's enactments have retained the form and appearance of a legal-constitutional discourse,2 the leading judgments of the men in robes and the myriad policy initiatives by the fonctionnaires have mutated the fundamental law of the Union into a dubious body of “dissonant” law,3 no longer informed by the normativity of the self-government proper to democratic constitutional law but by that of (neoliberal) “approximation.” The latter would sever the connection between law and critical practical reason by dissolving the very idea of the legal system as a normatively coherent whole and replacing it with the “pragmatic” reduction of law to a casuistic logic of appropriateness. It would also make political power vanish by negating the political condition and pretending to bring about a full decentralization of sovereignty, which Somek describes with poignant irony in chapter 11.
On the one hand, Somek places considerable emphasis on the regulatory inventiveness of the Commission. In chapters 5 and 12, for example, he peers behind the jargon used by the Commission in explaining itself, providing a crucial diagnosis of how individualism is tied to a peculiar form of “cradle to grave,” inexpensive, and paternalistic welfare state (a kind of welfare state on the cheap). Instead of classical and expensive redistributive measures involving personal taxes and personal benefits, the inexpensive European welfare state would seem to be about the zero-cost policing of personal habits. Thus, the obsession with initiatives aimed at rectifying the smoking, drinking, eating, and exercising habits of the population. Add to this the further twist of grounding such initiatives on the need to realize the internal market, and you must agree with the author's sarcasm: “Apparently, regulatory difference causes melancholia” (p. 250) and justifies the exercise of a liberal priesthood on the side of European institutions (p. 255).
But the most intriguing part of the argument is Somek's discordant interpretation of the case law of the European Court of Justice. By a skilled dissection of the leading cases concerning, on the one hand, the division of competences among the Union and the member states and, on the other, citizenship in the Union—or, to be more precise, the free movement of workers relabeled as the free movement of citizens by the Court itself—Somek reveals the extent to which the Court has radically altered the relationship between economics, society, and law on the old Continent. Rulings concerning the powers of the Union and, very significantly, the key Tobacco Advertising decision,4 have, he claims, consecrated a radical shift in the understanding of what the “internal market” is about. While seeming to “rein in” the power of the Union, the Court, in truth, has abandoned any attempt at limiting the societal sphere of the single market and the radiating normative force of economic freedoms. In particular, the Court has reversed its old limiting jurisprudence according to which the Union's competence was to be determined by the “center of gravity” approach or, what is the same thing, by pinpointing the regulatory interest of a measure and determining whether it was about creation of the internal market or achievement of a socioeconomic objective (the latter being reserved to member states). From Tobacco Advertising onward, the “internal market” has trumped other interests—that is, any measure that removes a sufficiently serious obstacle to an economic freedom is held by the Court to fall within the competence of the Union, even if its regulatory center of gravity lies in an area of national competence, such as protection of health, promotion of education, or combating tax fraud.
As a result, the ECJ has abandoned the so-called liberal market paradigm—which regarded economic integration as a way to achieve wider political goals—and replaced it with a supposedly holistic market understanding that looks upon the four economic freedoms5 as the ultimate objective to which the organization of all of society must be subordinated. Thus, all socioeconomic norms are consequently viewed with suspicion as potential obstacles to economic freedoms.6 Once envisaged as a means of realizing openly political goals, economic freedoms have become the core of the material constitution of the Union. They are now at the heart of the conception of politics and society as enshrined in positive European constitutional law, a conception that, while well known in European constitutional history, is somewhat at odds with the one endorsed by postwar national constitutions. Meanwhile, the line of cases led by Martínez Sala7 and Baumbast8 threatens to redefine the very understanding of European citizenship. On the face of it, these cases might seem to have replaced the “market” denizen of Community law with a “political” European citizen by extending the number of holders of the Community right to free movement beyond the rank and file of workers to the general class of nationals of a member states and, perhaps, even more widely to permanent residents of a member state. However, such rulings have far less benevolent implications, because the practical effect of this kind of rights discourse is to expand the possibilities for the ECJ to review any national law on the ground that it violates economic freedoms.
The upshot of the Commission's regulatory activities and the courts’ deregulatory activities is a full recalibration of Community law, which is softened, regarding the strong parties in socioeconomic relations even as it is hardened into abrasive forms of “liberal paternalism” that “nudge”9 us for our own good and purported freedom.
The overall political result is the decadence of citizenship, which becomes a hollow category, inadvertently superseded—by what, we cannot be sure. The weak pulse of European constitutional and ordinary politics only amplifies the consequences of these developments. The complex blend of intergovernmentalism and supranationalism that lies behind the institutional structure of the Union is, indeed, an impediment to the interconnection of national political debates. Consequently, both the Court and the Commission lack democratic reference points by which to orientate their decisions. As a result, the active citizen is being superseded by the oxymoronic “individualistic” citizen (chapters 10 and 12), who is persuaded that it is in her own interest to become a docile subject delegating all power to rulers. It is because politics has vanished from the picture that political strife can be presented as a distraction or a threat, from which the really free individual has to be liberated by proper men in the know, or, put differently, by the selected few capable of handling and, above all, managing the restless many.
All these major transformations would account for—among other things—the infatuation with a range of new and fanciful political idioms: no longer government, but “governance.” No longer capitalists, but “stakeholders.” No longer democratic confrontation, but arcadic “partnerships.” Somek takes considerable pains to show that, while the terms may be new, this is not uncharted territory but, rather, a political involution toward a mixed constitution of sorts, guided by the neoliberal mirage of absolute individualistic freedom. The form of law is kept but put to the service of a rather Lenin-inspired regulatory politics, limited to the administration of things (chapters 10 and 13).
Both the legal-dogmatic reconstruction of the ECJ's case law and the normative assessment of the EU's legitimacy seem more than “disturbingly plausible,” to quote a blurb printed on the book's cover. However, what seems to be absent from the train of reasoning of Individualism, unfortunately, is a proper consideration of the temporal dimension of European integration. A question that might be raised is whether the “post-constitutional” and “individualistic” drives that Somek describes are intrinsic to European integration, or whether they result from a mutation caused by political and judicial decisions. The point is not only of historical interest but is extremely salient in pragmatic terms. Indeed, the reader is left pondering whether European Union and Community law are doomed—is European law, indeed, postconstitutional in character?—or whether they can be redeemed and their normative promise realized. And if they can be, what is to be done to extricate the Union from its present fix? In that regard, the author seems to point in conflicting directions (in the affirmative, on pages 31, 241, or 267, and, in the negative, on pages 121 and 123). One can only guess that somebody who devotes time and effort to write a brilliant book about European integration is likely to find some promise in a federal Continental union.
Be that as it may, it seems to me that Somek's thesis needs to be tested by going further back in time. It was in the early and mid-’80s when a major turn in the perception of the relationship between politics, economics, and law took place both at the national and at the supranational level.10 This event consisted in the massive albeit slow transformation of the understanding of both national and constitutional law. At the European level, the rulings in Cassis de Dijon11 (certainly following the opening in Dassonville);12 the policy decisions reflected in the White Paper on the Completion of the Internal Market of June 1985;13 and the constitutional option for the Single European Act14 were conducive to the rise of what Somek labels “market holism” and “hollow” European citizenship. This turn of events is also reflected in the substantive shifts from the common to the single market15 and from the understanding of economic freedoms as a way of operationalizing the principle of nondiscrimination (and thus reconcilable with autonomous national socioeconomic policies) to their characterization as realizations of European citizenship. Individually, each of these shifts may be supported by reasonable arguments; however, as a whole, they provided cover for “privatizing” our understanding of freedom, and for the recharacterization of national welfare and tax norms as obstacles to economic freedoms. If this is correct, we could claim that it was these decisions that changed the structural and substantive genetic code of the Union and of its law. These decisions, and not some intrinsic features of Community law, are to blame for the progressive erosion of the socioeconomic preconditions for meaningful national socioeconomic policies. Thus, if there is nothing intrinsically rotten in the state of Europe and in its legal order, Individualism perhaps should be read less as a diagnosis of the unavoidable fate of the Union, of its institutions and its laws, than as a dystopic projection of what can go wrong if we keep on treading our present path.
Furthermore, it seems to me that Individualism merely suggests, without fully developing, the links between integration through postconstitutional law and the emergence of the so-called governance paradigm. Indeed, the Panglossian description of radically innovative procedures of collective will-formation through governance, such as the Open Method of Coordination,16 which, with little critical research underpinning it, nonetheless attracted wide comment, or the more esoteric mechanism of coordination of economic policies in Euroland through the Eurogroup seem to point in the same direction—that of overriding constitutional law. To use words that were very popular in policy circles in the ’90s, European governance should become the new grammar of European law. In more pedestrian English, this means replacing supposedly quaint or obsolete constitutional law, tainted by its relationship with the nation-state, with a new array of procedures and institutional formations; it will be through that the collective will may be formed. That sounds very similar, indeed, to the “dissonant law” that Somek reads into the jurisprudence of the European Court of Justice and the policy initiatives of the Commission. Still, it is ultimately uncalled-for to criticize an author for what was not done in a book that is as rich and suggestive as Somek's Individualism.