Governing the internal market: from judicial politics to ordinary politics

The internal market is commonly thought to be defined by a strong judiciary and weak legislature. Whereas the CJEU is seen as the driving force of economic integration, the EU legislature is considered to be comparatively ineffective and impotent. This chapter re-examines the relationship between the EU judicial and political processes. It argues that, over time, an important but largely unrecognised evolution has taken place: while the Court’s activism has ebbed down, the EU legislature’s role in market governance has grown. The result is a relative shift from judicial to ordinary politics, or negative to positive integration. This change has not fully seeped in EU scholarship. The contribution which the European legislature has and is making to economic integration remains, especially in the legal literature, chronically under-appreciated. The influence of the judiciary, by contrast, tends to be over-emphasised, as the recent ‘over-constitutionalisation’ debate shows.