The end of negative integration? Critical thoughts on Zglinski (and the ELS movement)

Abstract Has there been a rise or fall in negative integration in the last 50 years? Three competing views on this question can today be distinguished. One asserts that there has been a decline of negative integration; another one argues that negative integration has, instead, risen; while a third view, finally, contends that there has been neither a fall nor a rise, because the normative degree of negative integration has remained stable over time. In the last five years, Jan Zglinski has published several provocative pieces that have come to defend a modified version of the declining-integration view. Negative integration, he claims, has become ever weaker over time due, mainly, to a judicial rise of political deference towards the Member States. Negative integration has thus assumed ‘a stronger national flavour’ and may even be coming to an end! Importantly and innovatively, Zglinski arrives at this result by means of an ‘empirical legal studies’ method; and this ELS-method aims to settle the debate. For an ardent defender of the second view on the evolution of the internal market and a devotee of an historical-conceptual approach to European Union law this poses a tricky question: did Zglinski’s ‘data’ really meet the ‘law’ better than all qualitative-doctrinal views that preceded him?