Europeanisation, National Identities and Migration ... - europeanization

Democracy without demos 59
direct investment and value creation chains beyond national borders, differentiation
of professions and interest representation accompanied by a simultaneous loss in
significance of large associations, are the characteristic features of the growing
organic solidarity both inside and out.
European law: from material to procedural justice
The development from mechanical to organic solidarity corresponds to the
formation of European law and the withdrawal of national legal traditions. At the
same time, a common European culture is taking firm contours, whilst national
cultures tend to fade. Likewise, a European collective consciousness is arising
with a simultaneous weakening of national identities.
According to Jacques Delors, more than 80 per cent of the entire economic
activity is regulated by European law. If we disregard the regulation of the agricultural
market – which has its very specific reasons – this economic law is more
distinctly geared toward safeguarding the free flow of goods, economic liberties
and competition than that of the individual member states. It concerns the granting
of free movement of the factors of production, equal opportunities and fair
competition. Since all other areas of law are much less developed, this character,
which is committed to market logic, leaves its mark on European law as a whole.
It therefore appears obvious that its logic affects the other legal areas, too, especially
as there is no EU state with enough political power to introduce a different legal
logic. In the field of consumer protection, for instance, it is shown that the principle
of the mutual recognition of product standards leaves greater self-responsibility
to the consumers than was the case with the preventive protective policy of the
highly developed welfare states (Reich 1996; Micklitz 1997).
A change in paradigms from material to procedural protection of fundamental
rights can be observed here. Less so than the national welfare states, the European
Union is taking consumers under its wing by way of material legal prescriptions
and detailed uniform standards. Therefore, the role of the national courts and of
the European Court of Justice will be even more important when it comes to
ensuring a fair balance of interests between consumers and manufacturers when
implementing EU law in cases of dispute. The coordination of freedom of action
and balance of interests will shift to some extent away from material legislation
toward jurisdiction. The logic of this jurisdiction is characterised by the principle
of free movement and is, accordingly, mainly geared toward the correction of
practices that distort competition, or that lead to unfair competition, fraud and
misinformation at the expense of consumers. Consumers are not protected
materially, but are, instead, empowered to make autonomous decisions.
European social law: from social balance to fairness
Market logic corresponds to a legal logic guaranteeing individual legal subjects the
sovereign execution of their rights to freedom with equal opportunities. Market
logic and the related legal logic complement each other. The matching political