This Article considers the role of ideas in shaping law and policy processes, serving to facilitate certain actions or approaches while curtailing others. Using the development of the EU’s governance approach to online service providers and platforms, this Article demonstrates how ordoliberalism as a set of beliefs regarding the regulation of market activity through law have shaped the understanding of appropriate measures for combating hybrid threats such as disinformation. Highlighting the origins of the E-Commerce Directive and the influence of ordoliberalism in the application of a regulated self-regulation model, the Article explores how ordoliberal philosophical ideas have influenced programme and policy level ideas concerning EU cyberspace governance as it relates to online platform activities. Even where there has been discursive change regarding the role of online platforms in contributing to an environment of insecurity, there has nevertheless been ideational continuity in the approach to their regulation, dictating the legal response in the Digital Services Act.

Transparency is widely acknowledged as a core value in the governance of artificial intelligence (AI) technologies. However, scholarship on AI technologies and their regulation often casts this need for transparency in terms of requirements for the explanation of algorithmic outputs and/or decisions produced with the involvement of opaque black-box AI systems. Our article argues that this discourse has re-interpreted and reshaped transparency in fundamental ways away from its original meaning. The target of transparency – in most cases, the provider of AI software – determines and shapes what is made visible to the outside world, and there is no external check on the validity and accuracy of such mediated accounts and explanations, opening transparency up for manipulation. Through a theoretically informed and critical analysis of the transparency provisions in the European Union’s AI Act proposal, the article shows that the substitution of transparency with mediated explanations faces important technical constraints, creates opportunities and incentives for both providers and public-sector users of AI systems to adopt opaque practices, and reinforces secrecy requirements that gag accountability in practice. An approach to transparency as disclosure thus becomes necessary, even if not sufficient in and of itself, to ensure the accountable development and use of AI technologies in the European Union. Transparency needs to be reclaimed as a core concept, accountability tailored and reinforced and the necessity for secrecy re-examined and cordoned off.

The focus of the present contribution is the role of European Union (EU) law in shaping the working conditions of four groups of vulnerable workers. It assesses to what extent the impact of EU law favours, on these particular groups, an increased risk of In-Work Poverty (IWP) and explores whether the recent attention to IWP at EU level and the latest initiatives adopted may change the picture in the near future. The purpose is, therefore, to contribute to the debate on the role of EU law and policy in structuring vulnerability from the perspective of IWP. What is commonly known as EU labour law is a fragmentary legal corpus that has grown in a rather patchwork fashion as part of a social dimension of the European project that was, broadly speaking, functional to the logic of market integration. This originates in the early division of competences between the EU and the Member States in the Treaty of Rome, which left labour law and social protection outside the EU sphere of action. It partly explains why the protection of workers, particularly those that do not engage in cross-border situations, does not seem to be the EU’s primary goal, or at least it is not formulated as contrary to other potentially clashing rationales such as market integration, flexibility, enhanced competitiveness and so on. The prevention of IWP was not, in any case, one of the concerns of the original European project. Yet, EU law has produced several pieces of legislation that directly or indirectly contribute to shaping the working conditions of European workers, including those more exposed to IWP. The paper assesses the relevant EU legal framework and discusses its impact on the working conditions of those more at risk of IWP. It concludes by estimating the potential of a series of recent initiatives to enhance the protection of the most vulnerable workers, thus making a positive change.

This paper offers a critique of European Union (EU) consumer law’s role in commodification. Arguing that commodification is best understood as a normatively dependent concept, it contrasts two very different strands of commodification critique. While teleological critique refers to conceptions of the good life, authenticity, or the corruption of human essence, deontological critique relies on conceptions of right and wrong, justice, and human dignity. The paper argues for a specific, Kantian–Marxian version of the latter, proposing to understand commodification as a moral wrong when it leads to legal–political alienation. Such legal–political alienation occurs when someone becomes disconnected or feels dissociated from the political community and its political institutions because its laws treat that person as a mere means, not also an end. The only way to overcome such alienating commodification, the paper argues, is through a dialectic of individual and collective self-determination. On this normative basis, the paper, then, critiques core instances where EU consumer law wrongs its addressees through alienating commodification, including its acceptance of personal data as consideration, its encouragement of consumer resilience, and its privatisation of social justice through ethical consumerism.

What role does the Court of Justice of the European Union (CJEU) play in holding European Union (EU) regulatory science, ie the science underpinning public regulation, to account for its epistemic quality? Since Pfizer, CJEU case law has strengthened the role of science in both EU risk regulation and litigation, whilst intensifying judicial scrutiny of scientific reasoning based on procedural standards. Scholars often welcome this approach as striking an adequate balance between effective judicial protection and institutional competence. Some praise the Court as an ‘information catalyst’ promoting procedures, in which epistemic quality is ensured through diligent consideration of and deliberation among all relevant voices. These debates, however, overlook the role of economic actors as information providers, in and challengers of EU risk regulation. This paper re-evaluates the modern post-Pfizer approach from a new, socio-legal perspective by studying, for the first time, the interactions between judicial review and the epistemic power of economic actors, ie their relative ability to influence what EU regulators know at the expense of other actors. We combine an epistemologically informed comparative institutional analysis with doctrinal critique of CJEU case law. Our findings show the need to rethink both legal standing and procedural review in EU risk regulation. Instead of catalysing inclusive procedures that open regulatory science to public scrutiny, the modern approach fosters an exclusive bilateral information exchange between the administration and the regulated industry. The Court reduces the function of process values, such as duty of care and reason-giving, to the protection of a small circle of actors, neglecting the public interest dimension of such values. Thus, the modern approach fails to address, and instead further entrenches the epistemic power imbalances inherent in EU risk regulation. We end by sketching out a normative and doctrinally sound vision of how CJEU review could contribute to EU expert accountability in a more publicly oriented way.

The legal experts working for the European Union (EU) institutions facilitate EU policy-making activities. But no less importantly, they also shape the evolution of EU law. They have an established presence in EU legal academia and exercise authority through epistemic means. In this role, they make an important contribution to defining the scope and meaning of EU law and the limits of institutional action. Previous research demonstrates that this contribution is largely perceived in positive terms; as ‘clarifying facts’. Yet, as Union officials, institutional legal advisers are bound by Staff Regulations, which prohibit them from acting against institutional positions. This article investigates the role of institutional legal advisers in EU legal academia, placing it in the broader context of the self-image of EU legal scholarship and its ‘enchantment’ with the EU as a political project. It finds that the borderline between institutional strategy and academic research often gets blurred. It argues that EU legal scholarship should maintain a critical distance from the institutions that it studies and re-define its self-identity as a reflective and critical rather than legitimating force. This would contribute to strengthening the EU by enabling democratic debate about its policy choices and their possible alternatives.

This paper aims to question the dominance of human rights as the primary normative framework for European social media regulation, and academic research in this field. Analysing EU legislation and recent ECJ cases, it shows that issues like discriminatory content moderation, profiling, and promotion of stereotypes cannot adequately be addressed within a human rights framework. The centrality of individual rights in the EU legal regime not only fails to address collective issues, like platforms’ influence on culture and social norms, but cannot even offer effective, equal protection to individuals. In policy debates, the depoliticised and individualistic language of human rights can legitimise corporate activities and downplay important questions about the political economy of this privatised, highly-concentrated, advertiser-funded industry. The paper also considers interpretations of human rights as structural conditions or collective values, and argues that they cannot fully overcome the limitations discussed here. Given the entrenched role of fundamental rights in EU law, critics of social media cannot avoid relying on them. However, academics should also seek to develop more explicitly political critiques, based on alternative normative visions.

The rise of digital capitalism was marked by significant changes in the processes of value generation and capture in the economy. However, its impact on competition has only been recently explored. Taking a Law and Political Economy perspective we analyse four central developments challenging the traditional competition law framework and raising important questions regarding the broader institutional environment for the protection of competition: the transition towards financialisation and the logic of futurity, in particular in the digital economy, which gives rise to new competitive strategies of undertakings, structured around the ‘shareholder value’ principle; the extraction of economic value through new types of labour, which fall outside traditional employment relationships and hence affect the scope of competition law in the digital economy; the emergence of digital value chains that rely on multi-sided platforms and the formation of digital ecosystems, which challenge the usual focus of competition law on markets; the generation and extraction of value in the digital economy through new types of commodities and natural and artificial scarcities, that shape new social relations of production in accordance with the logic of futurity and lead to the emergence of competitive bottlenecks. Based on this analysis, we emphasize the need for a comprehensive theory-building for competition law and regulation that engages with these new processes of value generation and capture. We highlight how the underlying theories of ‘value’ and the institutional set-up have led to inequality and reduced competition. Existing institutions could not respond to these changes, which led to the initiation of significant institutional reforms. The prevailing conception of competition law had to evolve in congruence with different regulatory alternatives (a ‘toolkit’ approach). The article concludes by analysing how the emerging competition and regulatory compass for the digital economy in the European Union (EU) contributes to this dialectic between value generation/capture and institutional choice.

The introductory article sets out the background and the content of the Symposium on ‘Law and the Production of Precarious Work in Europe’. The analysis builds on the premise that European (EU) law, together with international and national law, is constitutive of precarious forms of work and work relations in different national and local contexts. The Symposium takes issue with the specific legal frameworks and regimes that are related to structuring various forms of precarious and exploitable labour, by exploring how (EU) law orders the world of work through legal regimes and regulatory frameworks governing specific forms of labour mobility across borders, as well as by looking at the other components of the structures and institutional interactions underlying the broader political economy where precarious forms of work materialise.

This paper sets out a research agenda for EU legal geography. It identifies some central traits to the project of legal geography, a relatively new and increasingly populated interdisciplinary space that links legal studies with geography. While the EU and the project of integration appear to offer particularly rich soil for the legal geographer, very little attention has been paid to the ways in which the nature, structure and lived experience of the EU can be explained from a spatial and temporal perspective. For many reasons, as will be elaborated, this is a shame. Most crucially, perhaps, there is a growing realisation in EU studies in general that the authority and legitimacy of the EU depends, more and more, on how it is experienced by its citizens. Legal geography, with its spatial awareness and focus on the way in which space, time and law are co-constituted, offers a lens, language and conceptual framework to fill this void. While EU lawyers have occasionally and haphazardly ventured into the terrain of legal geography, much work is to be done. This could take the form of methodological, empirical, or conceptual work, and would offer a new dimension to existing accounts of European integration and to the central concepts in doctrinal and constitutional work in EU legal studies.

In the western context, law has two functions. It upholds normative expectations and it transforms social phenomena. The latter is expressed through the form-giving function of law, as law designates particular social phenomena, such as, for example, economic, political or religious. Inside such overarching categories, further subcategories can moreover be observed. In relation to economic processes, the legal institutions of competition, contract, corporation and property are, for example, classical examples of the form-giving function of law. The dual function of law is briefly illustrated through a genealogy of imaginaries of law distinguishing between four historically dominant types of law: ‘Law as purpose’; ‘law as a tool’; ‘law as an obstacle’; and ‘law as reflexivity-initiation’. On this background, ten core dimensions of what might become a new episteme of transformative law are fleshed out with the aim of answering the question to what extent it can act as an alternative to the previous four types of law.

The article explores the Europeanisation of football, focusing on two dimensions of this process: its affective and regulatory dimension. Developments such as the creation of pan-European club competitions and growing cross-border movement of players mean that ‘Europe’ plays an ever more important role in football on an affective level. The same is true on a regulatory level, where EU law and policy have come to impact on various aspects of football, ranging from transfer rules, to club financing, to the sale of broadcasting rights. We argue that only by examining the interaction between these two dimensions can we truly understand what is ‘European’ about football. The article shows that there continues to be strong support in football for the cultural elements of the European Sport Model, including a commitment to local identity, sporting merit and solidarity. By contrast, its governance aspects are increasingly coming under pressure, as the recent European Super League saga illustrates. Our findings suggest that the EU can – and should – do more to improve regulatory standards in football and push for a greater representation of fans and other stakeholders that have currently no, or limited, voice in the football pyramid.

On the occasion of the launch of the European Law Open, this article analyses two policy documents of the European Union (EU) on its ambitions in peace mediation, to think about what it could mean for European law to be open to the world. Reading these documents – ‘the Concepts’ – through the lens of the theme that I have been assigned for this opening issue – ‘Europe in the world’ – one discerns an outward-looking EU searching for a greater role in the international field of peace mediation. One also sees instances of eurocentrism: a set of assumptions about the superiority of European (or ‘western’) ways of knowing and doing. In these Concepts, the EU envisages sending EU mediators into the world – either to mediate themselves or to support mediation efforts by others. The Concepts also contain increasingly long lists of EU values to be carried along and distributed during peace mediation. But the Concepts do not consider that in the countries where the EU mediator arrives, this backpack filled with normative baggage may bring other associations. Without more explicit recognition of the EU’s obstinate baggage, the EU is unlikely to be an effective peace mediator or, indeed, a credible global actor. More generally, critical reflexivity could help the EU to address the lingering Eurocentric tendencies that these Concepts reveal. Such critical questioning by the EU of its own assumptions, as well as learning from perspectives from outside the EU or the past, can be a process of focusing on Europe in order to decentre it. That, then, could also be a mission for this bold new European journal.

By the turn of the 1990s, tax competition among national governments had emerged as a powerful law-making practice. The possibility of tax competition essentially depends on the design of transnational law, such as European law. This Article examines the change of economic, political, and legal ideas that have shaped responses by the European Communities and the European Union (EU) to income tax competition. It asserts that under the post-war settlement of embedded liberalism and moderate market integration, tax competition was not perceived as a fully developed phenomenon. Under increased cross-border economic mobility in the 1990s, tax competition became a critical concern but received a liberal and permissive reaction from the EU. In the 2010s, governing tax competition in the EU became a more vital topic. Still, in the contemporary EU, turning political ideas into legal rules capable of addressing tax competition remains hampered by the EU law requirement of unanimous decision-making. The European choice of whether and how to address tax competition involves profoundly contrasting ideas on the means by which to govern the socio-economic reality. The decision between spontaneous and regulated income tax integration is therefore a salient political question, but the unanimity rule undermines political contestation over tax competition and over the European model of fiscal federalism. The Article comes to a close by reflecting on whether the EU legal order offers means to overcome the deadlock of unanimity and whether it could accommodate a more properly political contestation over the Europeanisation of income taxation.

The end of free movement as a consequence of the United Kingdom (UK)’s withdrawal from the European Union (EU) meant that it was necessary for the UK to devise a new migration system when the transition period came to an end. One aim of this article is to determine in what respects the new system, which came into force on 1 January 2021, draws on or differs from the previous immigration system. To the extent that this inquiry reveals some similarities, another aim is to uncover how the policymaking process produced these continuities. Drawing on the concept of path dependency from the ‘new institutionalism’ literature, the analysis reveals that two critical decisions taken by the New Labour government (1997–2010) set in train a path dependent policy process that has shaped immigration law and policy today. Two mechanisms of path dependency are identified. First, there were continuities in the operation of conceptual frameworks, methodologies and conclusions amongst organisations tasked with designing the new immigration system. Second, the position adopted by employing enterprises favoured the retention of key features of the previous system.

Orders are judicial decisions designed to shore up fair and timely resolution of disputes. As written, detailed, and factual documents, they are reliable markers of procedural steps and a unique source of information about the inner working of an institution. This article examines all published orders of the European Court of Justice, drawing lessons from their use. The analysis demonstrates that the pursuit of efficiency and uniform application blurs the lines between the administration and judging. First, it centralises the institution, expanding the duties of the Registry and amplifying the role of the Cabinet of the President of the Court. Second, it bureaucratises the interpretation and the uniform application of European Union law. These processes are common in judicial institutions with no power over their dockets. But the particular European response, authored by the Court, also suggests its reluctance to forfeit the interpretive monopoly.

There has been a turn to fundamental rights in environmental and climate cases before national and international courts in recent years. We know very little whether there has been such a turn in relation to European Union (EU) law before the Court of Justice of the European Union (CJEU). The CJEU occupies an increasingly relevant position in this nexus between environmental law and human rights because of strong and effective EU enforcement mechanisms, the abundance of specific EU secondary environmental law, the growing role of fundamental rights since 2009 and the self-standing provision on the environment in Article 37 of the Charter. An analysis of the case law, nonetheless, shows that Charter rights that can be used as ‘swords’ in the interest of environmental protection have so far played only a limited role. After explaining the absence of a rights turn, we argue that such a turn is warranted before the CJEU as well, also from a legal perspective. This article examines two potential avenues. The CJEU can derive positive obligations from relevant Charter provisions, including Articles 2 (right to life) and 7 (right to respect for private life and the home) of the Charter, or it can rely more extensively on Article 37 as a tool for interpreting primary and secondary EU law in an environmentally friendly way.

This article discusses the United Kingdom (UK) 2019 Seasonal Worker Visa, which was adopted to address labour shortages in horticulture. It explains the challenges faced by workers in agriculture more broadly, and the particular issues raised by seasonal visas. It argues that the UK scheme contains significant restrictions on workers’ rights. The article situates this scheme in a framework of ‘state-mediated structures of injustice’, namely instances where legal rules with an appearance of legitimacy create or increase vulnerability and are connected to widespread structures of exploitation. This theoretical framework focuses on the role and responsibility of the state for workers’ exploitation. The authorities have political responsibility to change these rules, and may also have legal responsibility to do so under human rights law.

This article unpacks some severe forms of exploitation of workers, resulting from the use of free provision of services for purposes that it was not intended to fulfil, under internal market law. It explores how this evolution of posting relates to the existence of a market resting only on the international assignment of workers, and proposes that the European Union (EU) takes steps to limit or prohibit assignment of labour, especially in the sectors (agriculture, meat sector, construction) where posting of workers, as some recent cases show, leads to extreme forms of exploitation that can be tagged as slavery.

Digital technology brought informational saturation to our lives. In cyberspace, private and business users need help to make valuable pieces of information stand out from the noise of excessive information. With search algorithms, recommender systems, and online advertising, digital platforms specialised in providing relief for this problem. Their technologies arrange digitalised information to make it intelligible and relevant for individuals. But the separation of information from noise did not only become a necessity to comfortably navigate the depths of the web, it also became a commodity. There is a demand for it, a supply, a price, and an exchange on markets which is enabled by private law. The examples of general search, recommender systems, and online advertising illustrate that. At the same time, their commodification can become problematic. This paper argues that in the European Union (EU), the separation of information from noise has become a contested commodity according to M. J. Radin’s framework. The Digital Services Act and the Digital Markets Act purposefully limit the influence of the market price mechanism on the design and allocation of the separation technology to protect legal goods like the democratic process, innovation, and privacy.