As the EU is positioned, and positions itself, as a global leader in digital regulation, it is more important than ever to challenge narratives that flatten disparities within the bloc. In this paper, I seek to problematise the perception of the European Union as the homogenous bloc sometimes alluded to, and even outwardly projected, in discussions about a ‘Brussels Effect’ in digital regulation. Using the EU Digital Services Act as a prism, I draw attention to the legal, political, social, and cultural variation within the EU and, crucially, the inter-state power dynamics and disparities that shape the development and implementation of EU digital regulation. Building on scholarship related to core-periphery dependencies within the EU and extending burgeoning critical methods in EU legal studies, leaning on decolonial approaches, I offer a foundational analysis of the DSA’s preliminary stages of the implementation of the EU Digital Services Act.

Calling for different comparative counterpoints to those routinely used in EU legal studies and digital regulation, this article presents a rare insight into the process from the perspective of the EU’s smallest member state, Malta, a former British colony considered part of the EU’s southern periphery that acceded in 2004. In this paper, I argue that, within the EU’s borders, the belief that we are moving toward increased harmonisation and standardisation in the realm of digital rights is, in practice, questionable. I underline that any meaningful assessment of the Digital Services Act’s overall success must pay close attention to the regulation’s tangible impacts (and shortcomings) from the perspective of ‘peripheral’ EU states.

Data tax (DT) could re-establish states’ legitimacy by governing economic actors and promoting social solidarity and welfare through benefits. However, the overall impact of DT will depend on decisions about what social benefits DT funds (universal basic income or less expensive public goods) and whether benefits will entrench or challenge harmful business models and practices. Focusing on the right to science (RtS), the paper argues that DT could realise the RtS in the digital age through taxation that exacted not only data rent but also rent on the scientific heritage. Finally, the paper emphasises the need for international coordination to ensure that DT is equitably shared among developed and less developed countries.

This Article draws upon and connects three different developments: the ‘internationalisation’ of tax law and EU tax law, specifically; the increasing digitalisation of the economy, and the European Union’s need for more revenue to deal with the financial consequences of the COVID-19 pandemic and other policy priorities. It is explained why the taxation of data per se cannot be addressed at the global level at present and why the focus of research has to lie on the taxation of the different business models of the digital economy. In the absence of a global agreement as to how the digital economy should be taxed, the reaction of the European Union to such a fundamental undertaking remains uncertain and politically contingent on the outcomes of negotiation at the OECD level. Most particularly, on the so-called Pillar One agreement. A seemingly temporal solution to the taxation of the digital economy, the so-called DSTs (Digital Services Taxes) have been adopted by Member States of the EU and third countries, but their future remains uncertain. Amidst these developments, the EU has also looked for ways to increase its resources and to finance its post-Covid ambitious recovery plan. This need has led to a reconsideration of whether EU taxes could finance the EU budget (next to the Union’s own resources, which remain for the main part transfers from Member States). In this Article, I argue that beyond tax design considerations and potential constitutional impediments, the EU revenue side should be emphasised in the discussion. Therefore, I suggest that the Union should ensure that at least part of the revenue arising from digital taxation should be channeled to the supranational budget. Whether Pillar One gets adopted or not, the potential introduction of an EU digital levy, ideally by way of an EU tax, could help overcoming several shortcomings of the present tax status quo and could result in an increase of the resources at the disposal of the EU in a fashion compatible with the imperatives of democratic legitimacy.

Beyond their differences, the various currents of neoliberalism share a common legal agenda: economic constitutionalism. From ordoliberal Ordnungspolitik to new classical macroeconomics and public choice, from Hayek’s ‘constitution of liberty’ to Vanberg’s ‘constitutional political economy’, an institutional agenda has emerged around a number of key tenets: enhancing the competition between jurisdictions through (state and international) federalism; safeguarding the competitive functioning of the market through supra-legislative rules; limiting fiscal policies and disciplining public spending through balanced budget rules; neutralising monetary policy through independent and price stability-oriented central banks. These key tenets of neoliberal constitutionalism infuse the three layers of the European economic constitution: the fundamental freedoms of movement pave the way to normative competition between national legislations (microeconomic constitution); competition law guarantees the competitive structure of the market (mesoeconomic constitution); European Economic and Monetary Union implements the rules of budgetary discipline and monetary stability (macroeconomic constitution). This does not imply that the European Union is solely a neoliberal project or that the European Union’s current neoliberal path is irreversible. But it does at least raise questions about the actual room for manoeuvre left by this rigid ‘economic constitution’ to public institutions in dealing with the various current crises.

What is the best way to tax data-driven business models without contravening the existing global quasi-constitutionalist order on tax, trade, and investment law? A number of countries in Europe and around the world have begun imposing standalone digital services taxes pending multilateral agreement on a coordinated reform of bilateral income tax treaties (aka the OECD-G20/Inclusive Framework’s ‘Pillar 1’). But if Pillar 1 fails to materialise and countries go forward with unilateral digital services taxes, the United States and U.S. firms will likely seek redress using domestic measures as well as trade and investment treaties where applicable. This Article argues that in the face of such U.S. resistance, EU member states and countries elsewhere ought to reconsider using the income tax system to achieve their goals instead. We first review the events that led countries to avoid the income tax in favour of standalone taxes only to become embroiled in domestic U.S. trade policies. We then explain how European and other source jurisdictions for business services related to data collection, mining, and commercialisation could revisit the income tax to get to the same tax base, namely by taking an ambulatory interpretation approach to provisions in existing tax treaties in a way that renders possible to accommodate withholding taxes on those services. We show that an ambulatory interpretation approach could achieve the underlying goals of taxing data-driven businesses, in some cases even without any domestic law or treaty reform, with treaty-based rules for dispute resolution a ready tool to draw upon if and when the United States disagrees.

The core of the contract between economic and monetary union is set in not so much the formally legal, if economically irrational and practically contentious, divide of the Treaties, but rather, the rules for governing the right balance of EMU are found in its economic governance framework, set up to condition national budgetary policies into optimal function in service of Union monetary policy. Within those rules we can differentiate two ‘worldviews’ of constitutionalism. The first we may refer to as ‘optimal function EMU’ where sovereigns are equal, democracies may pick their own socio-economic policy and make equally valid claims to be managed by the conflicts law approach of cooperation within the preventive arm of the European Semester based on Article 121 TFEU, and where we may pretend the economic-monetary divide erected by law is a real, tangible phenomenon. The alternative version of constitutionalism is found beyond ‘optimal function EMU’, in fact, as soon as any risk to the model arises. This worldview institutes a strict legal hierarchy that establishes monetary supremacy over the economic realm. Within this setup, the very existence and proper function of the single currency rationalise the ultimate truth – that all Member States are equal, but some are more equal than others. Can conflicts law constitutionalism offer a way to recalibrate unity and diversity in a format fit for the purposes of the contemporary financial and economic context, while simultaneously re-claiming the space for national collective choice and protecting Union values?

In this essay, I reflect on the evolving role of the European Union (EU) as a global regulatory state against the backdrop of Christian Joerges’s influential work on European constitutionalism. Engaging with Joerges’s intellectual oeuvre represents a personal moment in my academic journey, having come of age as a scholar under his guidance during my PhD studies at the European University Institute in Florence. I therefore would like to use the opportunity to critically engage with his work while situating my scholarly analysis within the broader context of my personal experiences across Europe and how they have shaped my focus on political power beyond traditional state politics. The essay begins with a personal reflection on the interplay between the personal, the political, and the academic in my work on democracy in the EU regulatory state. Subsequently, I delve into Joerges’s theory of conflicts-law-constitutionalism, examining its strengths and weaknesses, as well as its relevance for understanding the new geopolitical turn in EU external regulation and its implications for democratic constitutionalism.

Why should one expand Christian Joerges’s pioneering concept of ‘Europe’s conflicts-law constitution’? The European constitution should consistently incorporate the double plurality of Europe because, for centuries, Europe has been governed by two powerful pluralities that are orthogonal to each other, but at the same time closely interpenetrate each other. Europe’s material constitution is characterised not only by the conflicts between nation-state policies, but also by the deeper conflicts between different intrinsic normativities of societal institutions.

The European conflicts-law constitution should therefore not only realise the transnationalisation of the ‘political’ constitutions of the nation states and their underlying conflicts, but also a ‘societal’ constitution that inscribes itself into the conflicts of previously unconstitutional worlds of meaning. On the basis of this extension, Joerges’s ideas can be made fruitful beyond the conflicts-law constitution that he confined to the EU‘s political system. If their extension to sectoral constitutions of Europe is taken seriously, the three strategies, which Joerges developed for conflicts between nation states, are also promising for conflicts triggered by the diversity of functional systems. In three case constellations, the article outlines how Joerges’ methods can be successfully applied in the most recent European sectoral constitution – in ‘Europe’s digital constitution’.

Few issues remain as fraught as the relationship between European integration and national welfare states. For too long, Social Europe was an afterthought, relegated to the soft domain of the open method of coordination, while the formation of the single market proceeded with the full force of European law and institutions. Since the 2008 financial crisis, the social has returned—not just in Europe, but in all regions grappling with what comes after neo-liberalism. In this response, I turn to Christian Joerges’s seminal articulation of the conflict of laws as Europe’s constitutional form as a contribution to this current theoretical task. Central here has been how Joerges has staged a dialogue between theories of European law and the critique of the market order developed by the Hungarian philosopher and social theorist Karl Polanyi. I argue that Joerges picks up on democratic undercurrents in Polanyi’s theory that move beyond the opposition between nationally bounded welfare states and transnational private economic rights. Rather, we can see the social as a domain of multi-level democratic conflict mediation. While Joerges respects the ordoliberal vision of an economic constitution, he draws attention to their democratic deficits. Indeed, both the ordoliberals and Polanyi would reject the EU’s technocratic instrumentalisation of the market as a device for restructuring national social systems in a way that both deformalises European law and undermines its democratic legitimacy. I conclude with some speculative remarks about how the EU could be seen as introducing new dimensions of conflict into an emerging post-neoliberal order.

Christian Joerges is a scholar whose work spills over the conventional boundaries between public and private law, social science and legal theory, law and public policy, empirical inquiry and normative philosophy. This essay brings into focus Joerges’s under-appreciated role as a prescient, critical intellectual biographer of European integration. It argues that Joerges’s work has helped to diagnose, explain, and dismantle three misconceptions or myths with which European integration has been saddled from its formative decades. These misconceptions are (1) that the European integration project is ‘self-legitimating’ and therefore politically neutral; (2) that the delegation of decision-making authority to supranational institutions is constitutionally neutral; and (3) that there can be an epistemologically neutral, authoritative disciplinary perspective from which to comprehend European integration. Breaking the hold of these misconceptions is an essential step towards gaining a critical understanding of the promises and limitations of European integration today.

How does ‘Europe’ cope with its dark past and how does it handle its internal conflicts and contradictions? This is the question at the heart of Christian Joerges’s 600-page opus magnum Conflict and Transformation – Essays on European Law and Policy where he advances his reconceptualization of EU law as a particular form of conflicts law as his answer. But the problem constellation the EU is faced with in today’s world is well-beyond what can be encapsulated by a conflicts law perspective. As an alternative the idea of transformative law is introduced and its potential for acting as a basis for the reconceptualization of the EU legal order discussed. Joerges’s oeuvre moreover has a blind angle, as it is internalistic in nature. But rather than internal forces driving the integration project forward the structural trigger and driver of European integration should rather be found in the reconfiguration of Europe’s relations with the wider world. From (de-)colonialisation to todays ‘fragmented globalisation’ it is the structural reconfigurations of Europe’s relationships to the rest of the world which is the central driver of the integration process.

This review essay forms a contribution to the Dialogue & Debate symposium on Christian Joerges’s volume Conflict and Transformation (Hart 2022). The specific angle of this article is an interdisciplinary one that conceives of Joerges’s work as a boundary-crossing exercise between law and the social sciences. Aspects highlighted are the inspiration that his work finds in responding to Europe’s vocation, or realising the latter’s normative potential; the law-in-context quality of the approach, which combines inside and outside perspectives on what the law is and does, how it motivates and what it means; and the two-pronged ambition to take the law seriously as a legitimating force and to question, at the same time, the power of economic ‘facts’ and arguments, which sometimes overrule what seems legitimate. Moreover, this article considers the relevance and implications of two intellectual influences on Joerges’s work, one a more formative one (Habermas) and one resonating with recent experiences of crisis (Polanyi), and it follows the journey of Joerges’s reconstructive approach within European studies: between integration theory, governance approaches, and rethinking democracy in postnational constellations. As Joerges himself concedes, the normative vision that this yielded for European law and politics was overtaken by actual developments in the context of the monetary union, and conflicts-law constitutionalism became more of a counterfactual appeal. This article outlines how the critical edge of this approach could be enhanced by taking perspectives from critical political economy on board, which would also facilitate countering economic arguments.