III.3 Juridifying the Europeanisation Process

Rather than elaborating these abstract suggestions further, I would like to conclude by underlining that we have already observed how they operate and what they mean.

Consider again the ECJ’s recent product liability cases. They can be interpreted as a move back into orthodox supranationalism. Such a move would be a disaster, however. Product liability law is an element in a complex web of product safety law and regulation which, in Europe, is intimately related to semi-private Europeanised standardisation activities. It needs doctrinal blindness to encourage the ECJ to enter and expect it to control this arena.

Let us consider, again, windmill energy and the privatisation of public services (Daseinsvorsorge). Legal traditions, social expectations, political preferences, and administrative know-how all differ widely between Sicily and Mecklenburg, between Scotland and Greece. Europe can initiate further changes, and foster social learning. This is its mandate; the imposition of uniform regimes is a nightmare.

Consider again the Centros case. This is, in my interpretation, a wonderful example for the transformation of Marktbürger (H.P. Ipsen) into a European citizen, for the transformation of economic freedoms into rights of political importance, empowering the Untertan (subject) of a Member State to bring his or her sovereign to court and force national governments to give good reasons for their governance practices.

In all of these interpretations and suggestions, Europeanisation is conceptualised as a process, juridified by principles and procedures which organise the interactions between political actors and courts at different levels of governance, as a Recht-Fertigungs-Recht (Rudolf Wiethölter29), as a law of lawmaking (Frank I. Michelman30). And what about a codification of Europe’s private law? This is an idea for books about European private law, not for the law in Europe. Europe will remain heterarchical and plural; it will legitimate anybody to do away, either topdown or bottom-up, with its rich legal cultures; it will have to live with its complex mixture of “primary law” which grants basic freedoms and rights; transnational governance arrangements which organise regulatory activities; legislative and judicial interventions which irritate. This

29Recht-Fertigungen eines Gesellschafts-Rechts, in: Ch. Joerges/G.Teubner (eds.), Rechtsverfassungsrecht. Recht-Fertigung zwischen Privatrechtsdogmatik und Gesellschaftstheorie, BadenBaden: Nomos 2003, 13-21; [Just-ifications of a Law of of Society, forhcoming in: Oren Perez and Gunther Teubner (eds.), On Paradoxes and Self-reference in Law (2003)].

30Brennan and Democracy, Princeton, NJ: Princeton University Press 1999, 34 ff., 48.

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mixture is the “state of the (European) Union”. It is by no means a comfortable situation. It may even be one, which exceeds our learning capabilities and creativity.

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