The European Legal order, created by the European Court of Justice [ECJ], is an astonishingly effective treaty enforcement system. Previous explanations of its ‘transnational’ or ‘constitutional’ development have focused on the politics of judicial networks, and the wider political and economic context of postwar European democracy. Judicial biography has been almost entirely overlooked, even in the case of Robert Lecourt, widely acknowledged as the leading judge in the Court’s revolutionary period. Unknown to research on the ECJ, however, Lecourt had already spearheaded the adoption of the famous Article 49-3 of France’s 1958 Constitution. This paper demonstrates that the constitutional doctrines of European law and Article 49-3 were in fact premised on a similar ideology, that the pursuit of ‘effectiveness’ may require unprecedented restrictions on the traditional law-making role of national parliaments. Those were the constitutional values of the judge that, more than any other, built the foundations of the European legal order.

European Central Bank (ECB) staff have repeatedly justified the carbon bias of the Asset Purchase Programme (APP) in terms of “market neutrality”. Yet this term is not included in the Treaties so its meaning and legal nature are unclear. To clarify the meaning of market neutrality in the euro area’s monetary policy we develop a summative content analysis of the textual data contained in relevant legal and policy documents that are publicly available. We conclude that, in the context of monetary policy, the ECB and its staff have used the term market neutrality with two meanings: (i) the minimisation of any impact on the operation of markets and, in particular, on the operation of the price discovery mechanism; and (ii) the mirroring of the composition of a particular market to guide asset purchases. We then examine the legal nature of market neutrality in each of these two meanings. In its first meaning, we argue that market neutrality is the ECB’s definition of the so-called ‘principle of an open market economy’ (‘OME principle’) and it is therefore primary law. In its second meaning, we argue that market neutrality operationalises the OME principle and is therefore secondary law. Our conclusions differ from those reached by the first academic enquiries into the legal nature of market neutrality and open an academic debate on the matter. A clear understanding of the legal nature of market neutrality is also essential to assess the validity of the ECB’s climate change action plan.

How does EU free movement alter the role of the sovereign state? While this question may not sound new, this Article addresses it from a novel angle. If from the perspective of host Member States free movement upgrades a class of migrants to the status of ‘migrant citizens’, from the perspective of home Member States free movement instead splits the class of the citizens into citizen–settlers and citizen–migrants. The Article explores how the social contract between the state and the citizen is rewritten in the wake of this latter transformation. It articulates the duty of the states as agents for the citizen–migrants. It flashes out the implications for the relation between citizen–migrants and citizen–settlers. And it points to the partly reflexive nature of duties of states and citizens towards non-citizen migrants. It thus ultimately sheds light on how free movement prompts the sovereign state to embrace cosmopolitan obligations towards others ‘from within’, as an indirect effect of advancing the transnational interests of the citizen–migrants. The findings ultimately add to the cosmopolitan statist vision of European integration, while also rephrasing some of the questions of solidarity, non-discrimination and participation that remain unanswered in the literature on Union citizenship and free movement.

The past decade has seen the rise of the semi-authoritarian regimes within the European Union. EU law scholars are rightfully concerned that, in the absence of a meaningful response, this leads to an existential crisis for the Union, as these regimes threaten respect for the Union’s foundational values. The Union did respond to what it has framed as a rule of law crisis by means of a constitutional transformation, asserting Union power to protect judicial independence within the Member States even in areas previously thought beyond the reach of Union law. This paper contends that the Union’s response to the authoritarian threat is flawed for its legalist faith in law and courts. In institutional terms, it was the Court of Justice of the European Union, rather than the Union’s political branches, that took the lead in this transformation. In substantive terms, the Union has transformed its constitutional framework to protect the organisational infrastructure of the judiciary, but it failed to do the same in response to various other strategies in the authoritarian playbook. By framing the authoritarian threat as, above all else, a threat to the judiciary, the Union’s response contributes to the reification of political debate at Union level and risks the alienation of the European polity.

European cities struggle to regulate platform-mediated short-term rental services in response to local concerns over uncontrolled tourism and affordable housing. In their efforts to tame online platforms and local hosts, cities have consistently pointed to EU law as an obstacle to effective regulation and enforcement and called for solutions at EU level. To date, research has paid limited attention to the precise role of EU law in the regulatory responses to the growth of short-term renting. This article therefore offers an explanation of how EU internal market law structures the multi-level dynamics behind short-rental regulation. Methodologically, the article relies on a contextual analysis of the EU’s legal framework for (electronic) services and an in-depth, longitudinal case study of the City of Amsterdam’s efforts to regulate its Airbnb-driven short-term rental market (2013–2023). Comprehensive empirical evidence indicates that European e-commerce law can deter governments from enforcing platform cooperation in the upstream market and, instead, prompt them to shift the burden of regulation and compliance to the ‘actual’ service providers (the hosts) in the downstream market. These upstream/downstream dynamics also help to explain the successful adoption and normative content of the recent Short-Term Rental Regulation. With its focus on the power struggle between cities and platform actors in the EU internal market, the article also offers a unique, empirically grounded account of how EU law structures urban conflicts over housing and tourism in the context of platformisation and how platformisation might affect the dynamics of European market integration more generally.

In this Article, I show how Danish reception of EC/EU law has been shaped by Nordic law and the connections between Danish and other Nordic jurists in a triangular system of social arenas. The purpose is to show in a concrete case that understanding the history of EU law in Member States requires us to engage increasingly with its connections to transnational legal orders and social structures that are older and different to the EU. In this, I aim to contribute to a history and sociology of EU law that puts its contingency at the forefront and removes EU from the main stage. The Article is based on the archives of the Nordic Jurist Meetings, a triennial conference of Nordic jurists dating back 150 years. I contextualise the debates with contemporary developments in the reception of EC/EU law within Denmark. I argue that Nordic law has played a special role in the history of EC/EU law in Denmark, as a source of reciprocal legitimation between the legal elites of the five Nordic countries. Whereas the Danish legal elite first believed in synergy between Nordic and EC law, the increased use of EU law to challenge this very elite during the 1990s onwards made them see Nordic law as in a principled, values-based opposition to European law. I argue that engagement in Nordic law has shaped Danish jurists’ perception of EU law, just as it has been mobilised in a defence of the Danish legal order against EU law.

Interactions of global change science, business and policymakers play a crucial role in shaping today’s regulatory frameworks for corporate sustainability. Our research question is why sustainability might actually be undermined by the ways that some prominent interfaces are informing corporate sustainability. Concentrating on ‘science-based’ initiatives that prescribe quantitative target-setting, business-driven task forces that define frameworks for businesses to assess and disclose information on strategies and targets, and the European Union (EU) as a supranational policymaking power, we scrutinise concepts, debates and developments involving these three globally influential non-state actors.

Although the conceptualisation of sustainability as a safe and just space is well established in academic and policy contexts, key premises are being lost in translation at science–business–policy interfaces, delaying or actually deflecting regulation of business. We call for science–business–policy interfaces to conceptualise corporate sustainability as business contributing to mitigating planetary biophysical pressures and securing social foundations worldwide. In this context, we argue that the research basis for ‘safe and just’ cannot be reduced to simplistic and separate quantifications. Treating global sustainability goals as an itemised checklist for business action, and using scientifically narrow and overly reductive approaches to quantification and target-setting, fall short of this systemic understanding of corporate sustainability.

The recognition of risks of unsustainability and the desire for sustainable value creation can act as drivers for change. Paradoxically, today’s business concept of ‘sustainable value’ actually undermines the potential for transformations to sustainability, and the dominant finance-driven treatment of ‘sustainability risks’ fall far short of capturing the hazards of continued unsustainabilities. In examining what the EU is actually doing, we find that the EU’s unprecedented attempts at regulating business for sustainability are being thwarted through powerful lobby interests, the outcomes of the science–business–policy interface, and the EU’s own fixation on economic growth and finance.

Sustainability involves dealing justly with today’s unsafe conditions, and dealing safely with unjust conditions. This requires radically more innovative responses from business, truly sustainability-oriented adaptive leadership from policymakers, and critically reflexive transdisciplinary engagement by a much wider range of sustainability scholars.

No cooperative scheme in EU law has displayed bigger tensions between mutual trust and fundamental rights protection than the EAW system. Despite the requirement developed by the CJEU for national courts to trust each other and recognise each other’s arrest warrants, the reality on the ground has shown high levels of distrust between national courts regarding Member States’ alignment with core EU values. In this contribution, we analyze how the CJEU has managed such tensions in the EAW system. To that effect, we first put the Court’s EAW case law into context by examining the broader language of mutual trust used by the Court in other fields of EU law. In doing so, we point out how the Court has espoused different levels of lawful distrust to be exercised in different circumstances under the scope of application of mutual trust. Given that broader context, it is contradictory for the Court to mainly view mutual trust as a requirement rather than a reality in need of permanent and continuing justification between national authorities. The latter conception of mutual trust is more apt to be the basis of EU horizontal cooperation, which must be value-based and sincere according to the Treaties. Therefore, we propose a bidimensional account of mutual trust as a legal principle, one that accommodates both trust and distrust as tools for managing the uncertainty and dynamic nature of trust-based cooperation. Finally, we explore how such account of mutual (dis)trust can be concretised by the Court and other political institutions.

Belarus willingly uses migrants as a tool for political pressure, sending them into forests bordering the EU. This prompted Poland to secure its territory with additional troops and, first, to build a razor wire fence, and, second, to build an entire wall made of steel and concrete. The humanitarian situation of migrants stuck in the Białowieża forest has been dire. An underexposed theme is how not only people were hurt by the border policies, but non-human animals were also affected. As the effects of fencing ‘fortress Europe’ on wildlife are widespread (spatial behaviour, movements and gene flow), this paper uses the Polish–Belarusian border as a case study of a conflict between human border policies and non-human interests. We argue that the plans for the Polish wall are illegal, politically unjust and unethical, also from a more-than-human perspective. The wall is illegal because requirements under EU environmental law, in particular Article 6 of the Habitats Directive, were not met. The wall is unjust because it painfully demonstrates how animals’ communal or even liminal status is far from being recognised. Finally, the wall is unethical because it fails to account for the vulnerability of both humans and non-humans.

Consumers have in law been defined as the weaker parties in a transaction. Contract laws have integrated consumer protection with a view to balancing the interests of the parties, ensuring equal bargaining power and to some extent substantive fairness in contractual relations. Rules of consumer protection have therefore, from a contract lawyer’s perspective, been construed as expressions of a general principle of equality. The principle of equality, conceived in this way, complements the general principle of autonomy underlying contract law, which embodies the idea that parties should have the capacity for self-realisation. Does this construction of consumer contract law still hold in EU consumer markets transformed by the rise of online platforms and the overall move towards an economy based on services and experiences rather than the sale of physical goods? Or do we need to redefine the ways in which the principle of equality is expressed in European contract law in order to correct for new inequalities arising between consumers and businesses? This article aims to answer that question against the backdrop of established insights of the ways in which the rationality of European contract law differs from that of national, doctrinal private law systems. It concludes that the rules laid down in instruments such as the Unfair Commercial Practices Directive (UCPD) and the Unfair Contract Terms Directive (UCTD) can protect consumers against exploitative practices. However, problems arise in cases where the interest at stake go beyond economic interests and concern also non-economic interests, such as data protection or freedom of expression, or do not have a market exchange value. Solutions can be pursued, it is submitted, by the European legislator and the European Court of Justice, potentially using the EU Charter of Fundamental Rights as a catalyst for reform.

Proactive transparency in the form of electronic provision of documents is required by law in the EU. It has long been acknowledged in law and technology studies that digital technology can have legal consequences when implemented to perform a legal function. Consequently, the technological design of document registers has the ability to limit as well as enhance access to documents. When technology can have such regulatory powers, incorporating it into a legal function requires closer attention as to how or why it is so. This article will provide a close analysis of the European Commission’s main Register of Documents (RegDoc) to study the implications of technological design for access to documents. Transparency is approached through a procedural view, highlighting its mechanisms. The article uses a HCI based walkthrough method for the case-study artefact critique of the RegDoc. The main findings suggest that there are two specific affordances of the RegDoc that limit access, especially for users who do not have pre-existing knowledge of the documents they are searching for. These affordances are, first, the scope of the dataset and, second, searchability. Overall, designing technology for legally relevant functions should take into account the wider legal framework that the technology aims to cater for. Attention should be paid to the affordances that can make a legal difference in a technology created to perform a legally relevant task.

This article examines how European Union (EU) arms control measures are tailored to its constitutional foundations. EU Member States subject shipments of arms and components to controls so as to screen them for risks and potentially block them. In this context different Member States may make different geopolitical and humanitarian risk assessments. Existing EU measures have achieved only limited security screening harmonisation, and have left room for Member States to shirk their obligations under international humanitarian law. But in case of joint arms production, which the EU subsidises to become more autonomous, one Member State’s arms controls may block another State’s exports and thereby jeopardise cooperation. This article posits that any reform of EU arms controls should start by re-evaluating their present legal basis. A constitutional competence analysis shows that controls on arms shipments to non-EU states should be regulated in part through the Common Commercial Policy (CCP), and not just through the Common Foreign and Security Policy (CFSP). This would be consistent with other EU regulatory regimes for trade security. While a joint CFSP-CCP approach cannot fully prevent conflict, since this would require further foreign policy harmonisation, it could help foster security convergence and strengthen humanitarian due diligence mechanisms.

The Court of Justice of the European Union has been criticised increasingly for its approach to international law. While much literature focuses on reluctance to apply international law (ie refusing direct effect), this criticism also includes interpretation, arguably a more contentious area. The Court interprets international treaties through either the Vienna Convention or its own teleological method, with the latter increasingly applied. The legitimacy of applying localised methods of interpretation to international treaty law is debated in scholarship. Whether the Court’s case law applying international law is Völkerrechtsfreundlichkeit (friendliness to international law) is the focus of most contributions in this area. This Article seeks to move beyond that debate by demonstrating the Court should in all instances seek to achieve the legal imperatives of certainty and justice. It is explained that justice divides into ‘thin’ and ‘thick’ forms. Whilst ‘thin’ justice is widely accepted and amounts to treating like cases alike, substantive (‘thick’ justice) outcomes are inherently debatable. The Article proves the Court is failing to clearly distinguish cases (‘thin’ justice) and that case law is uncertain. There are also significant questions concerning ‘thick’ justice. The Court has been subject to criticism for substantive outcomes in this area, with the Commission and Council even seeking to limit its role. With case law that is uncertain and appears unjust it is argued that there is failure in this ‘integral part of EU law.’ The Court is now under increased pressure, and it is uncertain how it will respond. There are certainly cautionary lessons to be learned concerning the importance of paying proper attention to justice and certainty for EU law as a whole, and beyond.

Competition law is experiencing a transformation from a niche economic tool to a Swiss knife of broader industrial and social policy. Relatedly, there is a narrative that sees an expansive role for competition law in broad areas such as sustainability, privacy, and workers and labour rights, and a counternarrative that wants to deny it that role. There is rich scholarship on this area, but little empirical backing. In this article, we present the results of a comprehensive empirical research into whether new goals and objectives such as sustainability, privacy, and workers and labour rights are indeed endorsed in EU competition law and practice. We do so through an investigation into the totality of Court of Justice rulings, Commission decisions, Advocate General opinions, and public statements of the Commission. Our findings inject data into the debate and help dispel misconceptions that may arise by overly focusing on cherry-picked high-profile decisions while overlooking the rest of the EU’s institutional practice.

We find that sustainability is partially recognised as a goal whereas privacy and labour rights are not. We also show that all three goals are more recent than classic goals, that EU institutions have not engaged much with the areas of sustainability, privacy, and workers and labour rights, and that the Commission’s rhetoric is seemingly out of pace with decisional practice. We also identify trends that may bode for change, and we contextualize our analysis through the lens of the history and nature of the EU’s integration and economic constitution.

Digital Constitutionalism makes sense. We can all see the problem it tries to solve. And like many other ‘constitutionalisms’, Digital Constitutionalism is a project fuelled by the institutional hope of striking a power equilibrium between competing actors. In seeking this equilibrium, however, important assumptions are made and serious questions are oversimplified.

Firstly, Digital Constitutionalism ignores the production logics of digital technologies thereby mistaking ‘objects’ with ‘subjects’. Secondly, Digital Constitutionalism’s myopic lenses lead to narrations of ‘constitutional moments’ caused by digital powers and digital revolutions, separate from the histories of private corporations in the global stage. Finally, Digital Constitutionalism falsely implies the absence of law rather than its presence – or indeed irrelevance – as major causes of this ‘constitutional crisis’. On this account, it seeks to respond to the ‘digital revolution’ with a ‘legal revolution’.

Against this background, this Article invites legal scholars to look back to think differently, and to engage critically with the long evolution of legal regulation that has enabled the emergence of the corporate form and the consolidation of economic and political power on the global stage. This historicisation may ultimately lead us to turn inward and reflect on the role of legal experts and professionals in the political economy of technology. It may even inspire us to break free from restraining mental maps and thinking patterns and to unlock novel intellectual and methodological pathways in the field of Law and Technology.

And if it takes a Digital Constitutionalism to come to this, it will have been worth it.

The purpose of this short research note is to draw attention to two major pitfalls of working with databases of decisions of the Court of Justice of the European Union. The first one is technical in nature and relates to the discrepant coverage of the Curia and Eur-Lex databases. The second one is linguistic in nature and relates to the fact that most scholars using these databases work in English. New work on this front is capable of addressing the first issue but a change to research practices would be required to address the second.

This short Introduction outlines the purpose and structure of the Symposium on Ecosystem Restoration and EU Law. It opens by highlighting the potential relevance of the ecological move taken by the EU political institutions in the framework of the Green Deal. It then presents the issues addressed in the Symposium and the main overall argument emerging from its four contributions: whilst the EU ecological policy reflects the intention to shift from the traditional understanding of environmental protection as social regulation to a genuinely ecological and holistic vision, the functional rationale of such a move remains, for the moment, elusive and under-specified. Clarifying such rationale is an inescapable but complex task, as it requires a fresh discussion on the relationship between law and ecology, as well as a true understanding of the implications of ecosystem restoration for the evolving features of the EU polity.