Towards the constitutionalisation of neoliberalism in the EU? Or Constitutionalising market as a polity in the EU?

Theodoros Papadopoulos, Antonios Roumpakis

Research output: Contribution to conferencePaper


Our paper explores the role of transnational legal actors and process for the emergence of a neo-liberal institutional order within the European Union. Our paper comprises three parts. In the first part, we focus on the role of the European Court of Justice (ECJ) and European Court of Human Rights (ECHR) and their ability to legally constitutionalise the direction of European Integration. In particular, we review how ECJ’s ability to generate case-law in fields of labour law, collective bargaining, public provision, corporate governance and tax law institutionalise markets of available regulations where firms are able to consume their favourable legal rules. Recent ECHR rulings that challenge ECJ decisions expose how deeply political these judicial institutions can be.
In the second section, we explore how the new architecture of EU’s economic governance and in particular how the Fiscal Compact Treaty employs legal means (e.g. rulings, constitutional amendments) and authority to undermine member states’ economic sovereignty. We review how member states’ have to enshrine in national law that their budgets are be balanced or in surplus , while the ECJ is expected to impose punitive sanctions for member states that do not abide by these requirements.
In the third section, we explore how current trade negotiations like the Transatlantic Trade and Investment Partnership (TTIP) could create a new legal governance system, where clauses like the ‘Investor-State Dispute Settlement’ (ISDS) would allow firms to sue national governments for public provisions or laws that might hamper their profitability. Despite the secrecy involved over TTIP, these negotiations expose the political questions over which judicial authority will have the competence to decide over transnational (intra and extra-EU), over which areas of social policy, and under which legal system. Regardless of the inclusion of ISDS clause in the TTIP, we argue that the current role of judicial actors is centripetal to the current phase of market-driven European Integration.
Original languageEnglish
Publication statusPublished - 2016
EventSPA Annual Conference: Social Policy: Radical, Resistant, Resolute - Belfast, United Kingdom
Duration: 4 Jul 20166 Jul 2016


ConferenceSPA Annual Conference
Country/TerritoryUnited Kingdom

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