The Case for an EU Progress Studies Law Movement

Is the European Union now the world’s most underrated libertarian project? There is a fascinating and somewhat tragic paradox at the very center of the European integration project. If you look at the treaties of the European Union you will find what is perhaps the most robust legal framework for economic liberty that exists anywhere in the modern world. It is a system explicitly designed to dismantle the arbitrary power of the nation state to favor local industries. It was built to erode the ability of politicians to engage in protectionism. It was constructed to create a vast zone of unhampered exchange for goods, services, capital, and people.

Yet if you speak to the average classical liberal or libertarian in Europe today, you will find that they have almost entirely abdicated the courts. They view the European Union not as a tool for market liberation but as a superstate to be feared and avoided. This is a tragedy.

Inspired by Dalibor Rohac’s ‘Towards an Imperfect Union: A Conservative Case for the EU’ I will argue the case for a progress studies movement focused on EU administrative and procedural law.

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While libertarians rightly value the right to exit a bad system, they have effectively exited the one arena that was most suited to defending their own values.

Consider how the Court of Justice of the European Union (CJEU) used the Cassis de Dijon ruling to invent the principle of mutual recognition, effectively smashing German protectionism by declaring that a product good enough for Paris is good enough for Berlin. Look at how it leveraged proportionality in Commission v Italy to discipline national paternalism regarding trailer bans, transforming the internal market into a zone of negative rights. Even more boldly, the Court has aggressively liberalized services where politics failed; it is the institutional force that struck down the arbitrary “1/30” ratio for “uber driver” (VTC) licenses that protects a Barcelona taxi monopoly.

Moreover, while some member states dragged their feet on social liberty, the Court’s recent Wojewoda Mazowiecki judgement obliged Member States to recognize a marriage between two Union citizens of the same sex that has been lawfully concluded in another Member State where they have exercised their freedom to move and reside. The “Open Skies” judgments broke national flagship airline monopolies to create a single aviation market. The mechanism is ruthless and procedural: almost any litigant can use the Francovich doctrine to sue their own government for damages when it fails to open a market, or invoke Simmenthal alongside Costa v ENEL to disapply national legislation entirely that conflict with the single market.

We need to frame this paradox clearly because it drives the entire argument for a new movement. Libertarians (European classical liberals) have the strongest normative case for a free internal market. We are the ones who believe most deeply in the power of competition and the moral necessity of open borders for trade. Yet we have handed the keys to the legal engine of the European Union to our ideological opponents. The legal architecture of the EU was built to eliminate national barriers, but libertarians treat it as irredeemably statist.

The idea I want to advance here is that liberalisation will not return to Europe through politics alone. We are living in an era of rising anti-institutionalist populism where the political will to deregulate is almost nonexistent. The principles of direct effect and supremacy, which allow European law to override national law, are the core tools that libertarians have generally ignored. As Alec Stone Sweet argues in The Judicial Construction of Europe the legal system is constructed by the actors who participate in it. If libertarians refuse to participate, they are effectively conceding the construction of Europe to their opponents.

Why Libertarians Abandoned EU Law

To understand how we got here we need to engage in a bit of diagnostic analysis. Why did the libertarian movement in Europe abandon the legal field? I believe there are three main reasons: an intellectual allergy to supranationalism, an institutional capture of litigation by the left, and a lack of procedural imagination.

Many libertarians have a deep skepticism of any centralized power, and they view the European Union as a project of centralization. They conflate “Brussels centralisation” with “legal integration.” They do not see that legal integration can actually be a constraint on state power. There is a difference between political federalism, which can lead to a bloated superstate, and judicial market integration, which restricts the ability of member states to fragment the market. The former is bad from a libertarian perspective, but the latter is good. By failing to make this distinction, libertarians have rejected the entire project.

Second, there is the issue of institutional capture. Litigation is a game that is played by those who show up. Over the last few decades, progressive (Leftist) NGOs have mastered the art of strategic litigation as a democratic participation tool. They have used it to worsen environmental standards, digital rights, and consumer protection. They have built sophisticated legal networks that know how to spot a test case and how to bring it all the way to CJEU in Luxembourg. Market liberal think tanks, on the other hand, have stayed in the realm of policy. They write papers arguing that the Common Agricultural Policy is inefficient, which is true but ineffective. Meanwhile, environmental groups are in court forcing governments to rewrite their laws. There is an empirical angle here that is worth exploring. If one were to quantify and qualify the kind of cases going to the Court of Justice and the General Court, I suspect one would find a massive imbalance. The demand side of the court is dominated by those who want more regulation, not less. This is outside the scope of this essay but someone should do it.

Third, there is a dire drought of procedural imagination. Libertarian networks in Europe rarely create centers to train litigators. They do not inculcate the potential ruthlessness of Article 267 of the Treaty on the Functioning of the European Union (TFEU) or the doctrines of state liability. This stands in stark contrast to the situation in the United States. In the US, the “libertarian legal movement” is robust and highly effective. Organizations like the Institute for Justice, Foundation for Individual Rights and Expression, New Civil Liberties Alliance, and the Pacific Legal Foundation have spent decades using the courts to strike down occupational licensing laws, protect property rights, and defend free speech. They understand that the constitution is a tool that can be used to limit government. European libertarians have no such infrastructure. They have no “Institute for Justice” law clinic to take on the cases of the “little guy” against the State.

Finally, we must confront the issue of cultural defeatism. There is a widespread belief among European market liberals that EU law is “too dirigiste to save.” This has become a self-fulfilling prophecy. If you believe that the court is rigged against you, you will never bring a case. If you never bring a case, the court will never have the opportunity to rule in your favor. This mindset is a form of ideological fatalism. For more on this theme you should listen to my podcast episode with Adrián Rubio.

An Engine of Liberalisation

When we overcome this defeatism, we will see that EU administrative and procedural law (granted, not the most catchy phrase) is actually a hidden engine of liberalisation. The core treaties of the EU contain provisions that are remarkably libertarian in their effect. The four market freedoms (free movement of goods, services, persons, and capital) operate as negative rights. Articles 34, 49, and 56 of the TFEU are not just policy goals; they are legally binding prohibitions on state interference. They function very much like constitutional rights to trade. Libertarians should start framing these provisions as fundamental economic rights.

Then there is the principle of proportionality that is perhaps the most underutilized tool in the libertarian arsenal. The principle is enumerated in Article 5 (4) of the Treaty on European Union (TEU) and serves as a check on both the exercise of power (ensuring actions stay within bounds) and the substance of laws (balancing private rights against public goals). Essentially, if there are multiple ways to reach the same goal, the authority must choose the method that is least intrusive or burdensome to the individual’s rights. A law is not necessary if a less restrictive alternative could achieve the same result just as effectively. Properly invoked, it can dismantle arbitrary restrictions. Libertarians can and should use proportionality to discipline national paternalism.

We must also look at the enforcement mechanisms. The doctrines of direct effect and state liability mean that EU law is not just a matter for diplomats. It is a matter for individuals. The Francovich line of cases established that a citizen can sue their own government for damages if the government fails to implement EU law. This makes liberalisation self-executing. It creates a financial incentive for states to follow the rules. And let us not forget the principle of effectiveness and procedural autonomy. These doctrines force national courts to interpret domestic procedure in a way that makes the exercise of EU rights effective. If a national procedural rule makes it impossible to enforce a market right, the national rule must yield.

The core point here is that current pro-market actors discuss “deregulation” politically but ignore the historical reality. The most successful deregulation in history was the creation of the single market. And this was not achieved merely by legislative acts approved by the Council or the Parliament. It was achieved by the CJEU enforcing the treaties against recalcitrant member states. It was a judicial deregulation.

Who Occupies the Forum

The effectiveness of this judicial strategy has been proven, but unfortunately it has been proven by the others. While libertarians have been absent, other ideological groups have occupied the forum. The environmental movement is the prime example. Through the international Aarhus Convention (implemented jointly as Directive 2003/4/EC, Directive 2003/35/EC and Aarhus Regulation (1367/2006)), environmental NGOs won wide access to the courts to challenge decisions that affect the environment. They have used this standing to great effect. In cases like Stichting Milieu v Commission, they have forced the Commission to tighten its standards. Libertarians could mirror this strategy. They could argue for pro-market procedural rights that would allow them to challenge economic restrictions with the same vigor that environmentalists challenge modern infrastructure projects.

Digital rights activists have also shown the way. The case of Digital Rights Ireland is instructive. Here, a group of activists managed to get the Data Retention Directive invalidated on privacy grounds. This demonstrates that persistence can reshape entire EU doctrines. If a group of privacy activists can strike down a major EU directive, why can’t a group of economic liberty activists strike down a protectionist one?

Consumer protection and gender equality are other areas where activists have built vast positive rights case law through incremental strategic litigation. They did not win these rights all at once. They won them case by case, chipping away at the legal order until it reflected their values. This should suggest that activism through law is ideologically neutral. The law is a tool. If you pick it up and use it, you can win. If you leave it on the ground, your opponent will pick it up and use it against you.

It is important to remember that the Court of Justice is a demand driven court. It cannot rule on cases that are not brought before it. Libertarians simply seldom file the demand.

What a Libertarian Litigation Agenda Could Look Like

So what would a libertarian litigation agenda actually look like? One obvious target is licensing and local barriers. Across Europe, local governments use zoning laws and licensing requirements to protect incumbents. We see this with ride-hailing licenses in Spain, regional caps on businesses in Italy, and retail zoning in France. These are classic examples of rent seeking. A strategic litigation campaign would argue that these restrictions constitute a disproportionate restriction on the freedom of establishment under Articles 49 and 56 TFEU. The argument is simple: these rules do not serve a valid public interest; they serve the private interest of the taxi lobby or the existing retail chains.

Another target is the “gold plating” which occurs when member states transpose an EU directive into national law but add extra requirements that go beyond what the directive requires. This creates unnecessary burdens for businesses. Future work should demonstrate how different member states transpose the same directives in light of liberalization. For example, the Planning Act in Ireland and the Ley 21/2013 in Spain differ materially in how they handle environmental assessments; while both being EU Member States. These differences can distort the market and are often challengeable.

State aid is yet another fertile ground. Article 107 TFEU unequivocally prohibits state aid that distorts competition. This is a powerful tool to attack protectionist subsidies that crowd out new private entrants, like startups. If a government is propping up a failing national airline or giving tax breaks to a specific industry, that is a violation of EU law. A libertarian litigation strategy would aggressively challenge these subsidies.

We should also focus on procedural rights for entrepreneurs that invoke principles of legitimate expectations and good administration under Article 41 of the Charter of Fundamental Rights. Businesses need certainty to invest. When governments change the rules in the middle of the game, they often violate this principle. We should also push for standing and procedural equality. We need to push national courts to apply Aarhus-style openness to economic liberty NGOs. If an environmental group has standing to challenge a bridge, an economic liberty group should have standing to challenge a licensing law.

The meta strategy here is to build a network of preliminary reference procedures coordinated across member states. The preliminary reference procedure allows a national court to ask the CJEU for a ruling on the interpretation of EU law. This is the mechanism that links the domestic judge to the European judge. We need to develop standard pleadings that show domestic lawyers “how to turn a domestic licensing dispute into a European market freedom case” for the public interests. We need to equip the pro-liberty lawyers in Warsaw and Madrid with the arguments to go to Luxembourg.

Litigation as the True Liberal Art

Tyler Cowen and Patrick Collision set the stage but to sustain this progress studies movement for EU law we need a philosophical reframing. We need to cast litigation not as a dirty business but as a true European liberal art. We need to view it as institutional entrepreneurship. The aim is not to burn down the system; but to hold it to its own highest standards.

Libertarians should view the Rule of Law as a discovery process. Just as the market is a discovery process for prices, litigation is a discovery process for justice. It uncovers the limits of legitimate coercion. Indeed, there is a parallel here with Hayek’s concept of “spontaneous order.” The common law, and to some (increasing) extent the case law of the EU, evolves through the decentralized decisions of many judges over time. Courts act as decentralized knowledge processors. By bringing cases, we are feeding information into this system.

Libertarians should learn to love administrative procedure given that procedure is what constrains discretion. It is what prevents the arbitrary exercise of power. In fact, in a recent podcast Tyler Cowen rightly argued this point to Dan Wang, that against our intuitions, lawyers are the underrated engineers of progress. When we insist on due process, we are insisting that the state justify itself. Procedure exposes contradictions. It forces the state to admit that its “public health” regulation is actually just economic protectionism.

The polycentric nature of EU law also fits libertarian institutional design. We have the CJEU, the Commission, and the national courts all interacting. This creates a competition of jurisdictions. If the national court is blocked, you go to the European court. If the Commission is inactive, you go to the judge. Yes, there are many, many, many problems with EU institutions, and these are well known. But perhaps this essay can offer an alternative mental model.

So what to do? Libertarians need to move from talking to doing. I think that an “EU Progress Studies Law” clinic should be created. This clinic would exist to train European lawyers and students in the procedural tools for liberalization. It would be a training ground for the next generation of freedom fighters. It would teach them how to identify a good test case, how to draft a preliminary reference, and how to argue proportionality. It would do the empirical work of quantifying the cases and identifying the gaps. It would be the European answer to the Institute for Justice.

Enter the Arena

Libertarians are losing the EU not because Brussels became too powerful, but because they have weakened their fight in the forum where power was contested: the courtroom. They allowed their opponents to define the rules of the game. They exited the arena when they should have been flooding it with litigants.

Every major liberalisation ruling in EU history, from Cassis de Dijon to Keck, began as a single litigant’s act of defiance. The next wave of freedom in Europe will not come from new manifestos or from pithy tweets about the Commission. It will come from new case numbers in the CJEU’s docket. It will come from a movement that understands that the Rule of Law is the ultimate safeguard of liberty, and that is willing to do the hard, boring, procedural work of defending it.