ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

22 QUESTIONING HIERARCHICAL
BOUNDARIES IN REGIONAL
INTEGRATION THEORY
Regional integration is constantly reshaping and recreating
the boundaries around us and thereby also existing
hierarchies. The redrawing of boundaries between
insiders and outsiders, the center and the periphery,
and the national and the regional have all contributed
to the rearrangement of existing and creation of new
hierarchies. This panel examines, questions, and sheds
new light upon certain of the hierarchical boundaries
that have been widely ignored in the literature.
Participants Damjan Kukovec
Marija Bartl
Martijn van den Brink
Elaine Fahey
Alina Tryfonidou
Name of Chair Martijn van den Brink
Room DOR24 1.402
Damjan Kukovec: Borders, Otherness and Hierarchical
Construction of Reality
Borders, border measures and measures with
equivalent effect are an imperfect signifier for the
hierarchical reality of the EU and of the world in general.
This point is missed by integration theory, by the
discussion about Brexit as well as by daily legal and
economic thinking.
Otherness and exclusion of the other are constantly
and ineradicably reproduced in a constant hierarchical
struggle. In order to address exclusion, what needs to
be questioned, contested and resisted is not one or
the other order, theory, concept or worldview, but the
(hierarchical) reality that needs constant (re)construction.
Lawyers should articulate targeted resistance to
particular hierarchies and injuries using antitrust and
trade law as updated tools. I describe a privilege to
harm, enjoyed by companies from the structural center
of Europe against firms on the periphery. This analysis
provides one explanation for the increasing wealth and
power in the center of the European Union.
to disentangle citizenship and fundamental rights.
Secondly, this disentanglement is also normatively
desirable. Fundamental rights’ presumption of universality
is diametrically opposed to the bounded and
exclusionary nature of citizenship. Finally, the idea also
needs to be questioned on conceptual grounds, for it
rests upon a misconceptualisation of EU citizenship.
The latter conceptualisation disrespects legitimate
diversity within the EU and undermines local selfdetermination.
Elaine Fahey: Boundaries in the EU Contitutional
Order: The Benefits of the Internal/External Nexus
This paper examines understandings of boundaries
in the EU constitutional order and its internal/external
nexus. It considers ‘outwards-in’ effects of recent EU
external relations negotiations upon the EU constitutional
order. It argues that the external increasingly
democratises day to day practice more so than internal
practices.
Alina Tryfonidou: The Federal Implications
of the Transformation of the Market Freedoms
into Sources of Fundamental Rights for the
Union Citizen
Since the end of the 1960s the market freedoms
have begun to be viewed not merely as instrumental
freedoms aiming to contribute to the construction of
the internal market but also as sources of fundamental
(economic) rights for anyone falling within their (broadly
delimited) personal scope. The aim of this paper is to
examine what the federal implications of this are. In
particular, the Court’s approach in a number of areas
will be examined to illustrate how the vertical division
of powers between the EU and its Member States has
been affected as a result of this transformation in the
nature of the market freedoms. The focus will be on
demonstrating the dilemmas that the Court is facing
when attempting to reconcile the nature of these provisions
as the source of autonomous and meaningful
rights for the Union citizen, with the need to ensure
that the limits placed on the EU’s power to intervene
with the exercise of Member State competence are
respected.
Marija Bartl: Discussant
Martijn van den Brink: EU Citizenship and Fundamental
Rights: Empirical, Normative and Conceptual
Problems
An idea, which gained traction in recent years, is
that fundamental rights protection within the EU should
be linked to EU citizenship. EU citizenship, however,
does not provide us with the right tool; it is problematic,
empirically, theoretically, and conceptually speaking to
link EU citizenship to fundamental rights.
Empirically speaking, the notion that EU citizenship
implies fundamental rights goes against the
empirically discernible trends in liberal democracies
Concurring panels 51