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“Re-Constituting” the Internal Market: Towards a Common Law of International Trade?

Schütze, Robert

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Are the trade philosophies behind the EU internal market and the WTO international market converging or diverging; and are we, or are we not, moving towards a ‘common law of international trade’? Twenty years ago, an interesting—and swiftly famous—answer to this question was given by Joseph H.H. Weiler. Studying the ‘constitution of the common market’, the historical evolution of free movement law is here divided into five periods or generations. The underlying Weiler thesis is thereby as simple as it is beautiful: starting with an early radical philosophy in Dassonville, the European Union has gradually and consistently moved away from its original hyper-liberal approach towards an ever more deferential approach; and the transformation of Article 34 TFEU into a discrimination format ultimately leads to a convergence with international law. What are the empirical and normative credentials of this stylised construction of the internal market? This article argues that there are fundamental shortcomings in this standard interpretation of the evolution of the internal market, and that a historical reconstruction arrives at a very different empirical and normative picture. What can this ‘revisionist’ result mean for EU law scholarship in general? If EU constitutionalism wishes to ‘re-constitute’ its object of study properly, it needs to abandon the abstract ways of philosophizing that have become commonplace in the last 25 years. Part and parcel of this methodological renaissance must be a renewed commitment to test (constitutional) theory against (judicial) practice.


Schütze, R. (2020). “Re-Constituting” the Internal Market: Towards a Common Law of International Trade?. Yearbook of European Law, 39, 250-292.

Journal Article Type Article
Acceptance Date Jul 13, 2020
Online Publication Date Nov 18, 2020
Publication Date 2020
Deposit Date Jul 21, 2020
Publicly Available Date Nov 18, 2022
Journal Yearbook of European Law
Print ISSN 0263-3264
Electronic ISSN 2045-0044
Publisher Oxford University Press
Peer Reviewed Peer Reviewed
Volume 39
Article Number yeaa005
Pages 250-292


Accepted Journal Article (592 Kb)

Copyright Statement
This is a pre-copyedited, author-produced PDF of an article accepted for publication in Yearbook of European law following peer review. The version of record Schütze, Robert (2020). “Re-Constituting” the Internal Market: Towards a Common Law of International Trade? Yearbook of European Law is available online at:

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