A wind of change is blowing through the European judicial landscape. During the past decade, the European Union (EU) judiciary has undergone its biggest institutional overhaul in generations, the rise of authoritarian populism in Central and Eastern Europe has prompted a Rule of Law crisis, several supreme and constitutional courts challenged the supremacy of EU law, while the Court of Justice re-articulated the scope of the duty to refer under Article 267 TFEU and, for the first time, found that domestic last-instance courts breaching it triggered state liability. This Article argues that these and similar developments, once looked at together, suggest that something fundamental has shifted in the EU’s judicial architecture. A new form of judicial federalism has emerged, which departs from the traditional way in which relations between EU and Member State courts used to be structured. Although this new federalism is multifaceted and is marked by both centripetal and centrifugal forces, its distinguishing feature is a stronger centralisation, which manifests itself in a considerably expanded federal judiciary, a greater emphasis on hierarchy, a more careful use of European judicial resources, as well as tighter supervision of national procedures and court structures.

This introductory Article sets out the background and summarises the content of the Symposium on ‘The Court of Justice of the European Union (CJEU) as a Relational Actor’. Observing that the CJEU has been a key player in shaping European legal integration, the Symposium takes as its starting point that courts – and the CJEU is no exception in this regard – are unable to drive developments in isolation. For the Court to carry out its role as guarantor of the Treaties and guardian of the rule of law in the Union, it needs not to isolate itself but to interact with other European Union (EU) and national institutions. Relations, the Symposium argues, are not only unavoidable but also legitimate and even vital for the adequate execution of the judicial function. This introduction briefly explores six of the Court’s most important relationships: those with the other EU institutions; the courts of the Member States; the Member States themselves; the parties appearing before it; other international courts; and the general public. It then summarises the contributions and highlights how they complement each other in examining the CJEU as a relational actor.

This symposium analyses European Union (EU) law as a means for both perpetuating commodification processes and potentially mitigating their consequences. This issue framing essay traces the evolutionary trajectory of commodification as a conceptual framework in contemporary intellectual debates, zeroing in on the most prominent theoretical frameworks underpinning its usage. It then relates the evolution of these debates more concretely to the context of the EU as a major institutional forum for the concept’s actualisation. Lastly, it connects these narratives to current conversations on the law’s role in constituting capitalism and consolidating its attendant structural inequalities. In so doing, it also canvasses the contributions that make up this symposium, showing how each enhances the discussion of commodification in the EU context.

The Rejoinder offers a first response to the reviews of The Redress of Law, published in this issue of ELO, and further pursues certain lines of theoretical inquiry in engagement with the reviewers’ suggestions and objections.

EU legal geography concerns itself with the mutually constitutive relationship between EU law and space (also, and increasingly so, time). This requires reconstructing and systematizing the widely used concepts which reveal the geographical basis of EU law (such as movement and circulation), but also developing a particular viewpoint, indeed a specific “ethos of investigation”, which equips us with the tools to challenge and transcend the dominant ways of doing EU law. In particular, it is argued that a geographic turn in European legal studies will foster the study of how law works “on the ground” and will allow challenging taken-for-granted ideas about the relationship between law and political order, while throwing new light on the very technical concepts with which we reconstruct, analyse and assess EU law.

This article revisits the present and future of the direct effect principle and submits solutions for its appropriate understanding and enforcement. Once the topic has been put into context and it has been shown why direct effect is an evolving notion whose scope goes beyond the Van Gend & Loos judgement and the doctrine originating from it, the study presents five intertwined arguments. First, direct effect has two facets since, aside from a subjective-substitutive form of direct effect, there exists an objective-oppositive manifestation of direct effect, whereby a directly effective European Union (EU) provision entails the disapplication of national law, without either conferring immediately an individual right or replacing the domestic norm in governing the case at hand. Second, the article claims that the obligation to disapply is triggered always by primacy and direct effect, never by primacy alone. In fact, justifying disapplication on the basis only of the primacy principle and not on primacy and direct effect is likely to undermine the logic implied in the relationship between the EU legal order and domestic legal systems. Third, there are legitimate derogations from the obligation to immediately disapply a conflicting domestic provision with EU law endowed with direct effect in so far as they are admitted by the Court of Justice of the European Union (CJEU) on the condition that the replacement of a national provision by an EU norm may harm individual rights and/or question the national identity clause enshrined in Article 4(2) Treaty on European Union (TEU). Fourth, the test on clarity, precision and unconditionality for assessing whether an EU norm is directly effective, as it was conceived by the CJEU, is no longer a pillar in the conceptualisation and practice of direct effect. As a matter of fact, only unconditionality, in practice, proves to be the core element of direct effect. Moreover, direct effect and direct applicability are equivalent concepts since unconditionality, as the condicio sine qua non of direct effect, coincides with direct applicability. Fifth, a distinctive quality of direct effect, along with unconditionality, is the creation of an advantage resulting from the application of EU law and the subsequent disapplication of national law. This implies that an EU directly effective provision can never be only in malam partem (ie, detrimental for the individual) and thus disapplication, lacking the existence of an advantage for the individual, shall never come into play. The article concludes that the duty to refine the doctrine of direct effect must be performed, ultimately, by the CJEU. Indeed, only the CJEU can offer guidance to national authorities, since it has an interpretive monopoly on the ifs, whens and hows of direct effect. To this end, it is vital that the EU judges, by rejecting argumentative minimalism brought to its extreme, come to reassert their constitutional role and re-establish the common core of the EU system, beginning with the principles that created and shaped it.

In recent years, legal scholars have dismantled influential economic accounts of the private nature of money, demonstrating that money is better understood as a ‘governance project’ and a public resource that is created and regulated by the state. Legal theories of money could lend support to the ECB’s recent use of ‘unorthodox’ monetary policy to stabilise the euro, and could further support proposals for the innovative use of monetary policy to combat inequality. However, legal writing on money to date has primarily sought to challenge neoclassical economics – a body of thought that denies the impact that distributions of credit by the state play in shaping processes of value formation in the economy. Two further dimensions of the nature of money have received less attention from legal scholars to date: first, the question of how money comes to have an economic value (an important component of ‘moneyness’), and, second, how the international functions of credit money as currency in international trade and finance may limit the capacities of governments to manage money differently. In this article, I offer a revised account of the legal nature of money that is more attentive to the transnational nature of the legal regimes and institutions that enable the production of sovereign credit monies in the contemporary global political economy. My analysis complicates both the suggestion that the ECB can address inequality in the eurozone by means of unorthodox monetary policy and the widely made counter-argument that the only solution to the constitutional crisis in the European Union (EU) is the creation of a political sovereign imbued with stronger fiscal powers. I find that unless the current transnational legal arrangements that enable the production and governance of money are addressed, no states will be able to act as ‘centralised and legitimate political authorities’ that can control capitalist credit money in accordance with democratic imperatives.

As the Second World War was drawing to a close in 1944, two great works of political economy were published. One of them was Friedrich August von Hayek’s The Road to Serfdom,1 inspiring the defenders of free market movements ever since and up to the present. The other was Karl Polanyi’s The Great Transformation.2 This essay will focus on Polanyi but also pay tribute to Hayek. Contrasting the two helps to understand both of them better. Of the two, Hayek, the Nobel prize winner, is of course more widely known and by far more influential. But Polanyi’s work, too, has achieved and has been attracting as of recently such attention that one of the Directors of the Max Planck Institute for the Study of Societies in Cologne proclaimed that ‘we are all Polanyian now’,3 not only in economic sociology, but also in related disciplines, including, of course, political economy and political theory. A plethora of aspects of The Great Transformation are very widely discussed. This essay will be concerned with the not-so-well explored importance of Polanyi’s work for European Law and legal scholarship in general, including his theorems on the ‘embedded economy’, his conceptualisation of labour as a ‘fictitious commodity’ as well as the notion of counter-movements. It will then juxtapose Polanyi’s expectation of a new international order with the development of the European integration project and sketch out the contours of the democracy-enhancing conflicts law and its affinities with Polanyian core normative principles.