The end of negative integration within the internal market? re-assessing the EU´s free movement of goods rigidity

Fritz Scharpf´s asymmetry thesis highlights a significant imbalance in European integration, arguing that the EU’s institutional structure inherently favours market-liberalising policies (negative integration) over re-regulation at the European level (positive integration). More recently, scholars have challenged this view, claiming that negative integration has weakened – or even ended – while positive integration has gained strength. This article critically examines those claims and argues that negative integration has not ended. Rather, its enforcement has shifted from litigation before the CJEU to preventive mechanisms by the Commission. Evidence from the EU notification procedure, the application of mutual recognition, and interviews reveal a significant increase in Member State compliance with the internal market rules, indicating that negative integration has not weakened but rather deepened. National authorities have largely internalised the principle of mutual recognition and increasingly adhere to it. This ‘invisible’ form of negative integration – compliance by Member States – demonstrates that the actual extent of negative integration is far greater than what court rulings alone would suggest. Both direct and indirect forms of negative integration continue to tilt the balance toward liberalisation, constraining national governments’ ability to pursue legitimate non-economic policy goals.