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RSCAS 2019/43Rev.3 Legal Trajectories of Neoliberalism RSCAS 2019/43 Robert Schuman Centre for Advanced Studies Legal Trajectories of Neoliberalism: Critical Inquiries on Law in Europe Edited by Margot E Salomon and Bruno de Witte European University Institute Robert Schuman Centre for Advanced Studies Legal Trajectories of Neoliberalism: Critical Inquiries on Law in Europe Edited by Margot E Salomon and Bruno de Witte EUI Working Paper RSCAS 2019/43 This text may be downloaded only for personal research purposes. Additional reproduction for other purposes, whether in hard copies or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper, or other series, the year and the publisher. ISSN 1028-3625 © Edited by Margot E Salomon and Bruno de Witte, 2019 Printed in Italy, June 2019 European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu/RSCAS/Publications/ www.eui.eu cadmus.eui.eu Robert Schuman Centre for Advanced Studies The Robert Schuman Centre for Advanced Studies, created in 1992 and currently directed by Professor Brigid Laffan, aims to develop inter-disciplinary and comparative research on the major issues facing the process of European integration, European societies and Europe’s place in 21st century global politics. The Centre is home to a large post-doctoral programme and hosts major research programmes, projects and data sets, in addition to a range of working groups and ad hoc initiatives. The research agenda is organised around a set of core themes and is continuously evolving, reflecting the changing agenda of European integration, the expanding membership of the European Union, developments in Europe’s neighbourhood and the wider world. For more information: http://eui.eu/rscas The EUI and the RSCAS are not responsible for the opinion expressed by the author(s). Abstract Responses to the recent (and ongoing) debt and austerity crises in Europe reveal multiple techniques through which the rule and role of law operate in these times of neoliberal capitalism. From international law, to human rights law, to European Union law, and constitutional law the deployment and orientation of law in the past few years point up ways in which law co-constitutes neoliberal values and structures, legitimating and hardening those values and foreclosing alternatives. Framing market interests, capital accumulation and profit as the common interest, advancing conditions for competition, favouring the private over the public and over the commons, and situating social justice as derivative of those goals are just some of the neoliberal values that have been reflected through the instrumentalism of law. The contributors to this collective working paper offer short ‘think pieces’ exploring the legal trajectory of neoliberalism in particular fields of law. Some of them take a general perspective on the evolving role of law, whereas others focus on select but representative examples. The authors may not all concur in their assessment of the role of law, but they all engage with the role of law in the recent evolution of European politics and society. Keywords Neoliberalism – human rights – social rights – market regulation Table of Contents Legal Trajectories of Neoliberalism: Critical Inquiries on Law in Europe. Introductory Remarks Margot E Salomon and Bruno de Witte .............................................................................................. 1 From Empire to Austerity: The Golden Thread of International Economic Law Fiona Macmillan ................................................................................................................................. 7 The Utility of Crises and the Regressive Development of International Law Margot E Salomon ............................................................................................................................ 13 The European Court of Human Rights and Accountability for Neoliberal State Conduct: Never the Twain Shall Meet? Başak Çalı ......................................................................................................................................... 21 Austerity and Human Rights: Reflections on the Jurisprudence of the European Committee of Social Rights Karin Lukas ....................................................................................................................................... 26 Social Constitutionalism in the Age of Austerity Emilios Christodoulidis ..................................................................................................................... 32 Regulatory Competition and Free Movement of Companies under EU Law: Exercise of a Genuine Economic Activity or Just Law Shopping? Francesco Costamagna ...................................................................................................................... 38 The “Digital Single Market” and Neoliberalism: Reflections on Net Neutrality Sophie Robin-Olivier ........................................................................................................................ 45 Neoliberalism and Democracy George Katrougalos ........................................................................................................................... 50 Legal Trajectories of Neoliberalism: Critical Inquiries on Law in Europe Introductory Remarks Margot E Salomon* and Bruno de Witte** Responses to the recent (and ongoing) debt and austerity crises in Europe reveal multiple techniques through which the rule and role of law operate in these times of neoliberal capitalism. From international law, to human rights law, to European Union law, and constitutional law the deployment and orientation of law in the past few years point up ways in which law co-constitutes neoliberal values and structures, legitimating and hardening those values and foreclosing alternatives. Framing market interests, capital accumulation and profit as the common interest, advancing conditions for competition (including among vulnerable individuals), favouring the private over the public1 and over the commons, and situating social justice as derivative of those goals are just some of the neoliberal values that have been reflected through the instrumentalism of law. We have seen the aims of a stable economy, redistribution, and the public interest all positioned through law as handmaidens to neoliberal goals.2 The expediency of an emergency situation has laid bare the lawlessness of international actors, obscured structural problems, and limited possibilities for dissent. With the help of law, the meaning of sovereign and popular consent has been lost and democracy truncated. Law is not merely a tool to resolve disputes and protect some people’s human rights; it is a mediator and an enabler. The focus of this workshop was on where and how the form and content of law in this dark period of Europe’s present – its core tenets, contemporary assumptions and organization, its rules and their interpretation – contribute to the dominant project that is neoliberalism. Using the recent European crises as a point of reference, this workshop was organized as an opportunity to share ongoing research on where neoliberalism is to be found in its relations with law (whether international, human rights, EU, or constitutional) and with what implications for law and for law’s emancipatory functions. The workshop was supported by the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 703063 on ‘Legal Rights and the Political Economy of Debt and Austerity in Europe’ held by Dr Margot Salomon at the Robert Schuman Centre for Advanced Studies (RSCAS), European University Institute (EUI), in 2017-18. The event was hosted by the RSCAS and the Law Department, EUI. The ‘think pieces’ herein offer preliminary reflections on the topic from workshop presenters and we thank them and the commentators for bringing their formidable and varied knowledge bases from across disciplines to bear on the topics that were under discussion at the workshop. As the title of the workshop suggests, the working assumption is that contemporary capitalism takes a form that could reasonably be referred to as neoliberalism. Whether through its particular animating components or framed as ideal type, neoliberal capitalism is sufficiently clear conceptually and in practice to inform study;3 its efficacy in enriching our understanding of the world readily embraced by * Law Department, LSE; Visiting Fellow 2017-18, RSCAS, EUI. ** Law Department, EUI. 1 Evident also in the shifting of law itself to the private sphere, see, U Mattei, ‘Emergency-Based Predatory Capitalism: Rule of Law, Alternative Dispute Resolution, and Development’ in D Fassin and M Pandolfi (eds) Contemporary States of Emergency: The Politics of Military and Humananitarian Intervention (Zone Books 2010) 89. 2 On the question of public interest compare the European Court of Human Rights and the European Committee of Social Rights. In the Court’s admissibility decision in Koufaki and ADEDY v. Greece, the notion of public interest is reducible to structural reform of the Greek economy and subject to a wide margin of appreciation. In the latter body, as per Lukas herein, ‘the Committee has emphasized that obligations stemming from international law, including the European Social Charter, play a definitive role in shaping the public interest. More specifically, it stressed that
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