The end of negative market integration: 60 years of free movement of goods litigation in the EU (1961–2020)

Abstract

The free movement of goods is widely believed to be a prime example of the negative integration paradigm. Its defining characteristic is a strong judicial process, fuelled by–and fuelling–litigation, which eclipses the weak(er) political process. The article argues that this dominant narrative is no longer accurate. Based on a new dataset of all Article 34 TFEU cases decided by the CJEU between 1961 and 2020, it shows that goods litigation has been disappearing from the Court’s docket since the mid-1980s. The reasons for this, it is argued, lie in changing incentive structures for both litigants and national courts, which have reduced the appeal of bringing goods cases, as well as a rise in EU legislation. The consequence is a demise of negative and a turn towards positive integration.