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.

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.

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.

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.

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.

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.

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.

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.

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.

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 contribution to the Symposium on Ecosystem Restoration and EU Law assesses the underground protection schemes suggested by the European Green Deal (EGD) for the European Union (EU). By addressing the overground bias that environmental laws and policies have traditionally suffered from, the analysis engages with the EU Soil Strategy for 2030, its ‘Mission “A Soil Deal for Europe”’, and the proposed 2023 Soil Monitoring Directive. The Article explores how and to what extent this agenda for the preservation and restoration of soils is legally reordering the European ground and, simultaneously, how and to what extent it is regrounding the European legal order.

Interdisciplinary analysis of law is a powerful tool for analyzing a variety of legal problems. The strength of interdisciplinarity is its ability to unveil significant factors that remain hidden when seen solely within disciplinary boundaries. This symposium aims to focus on the analytic abilities of interdisciplinarity when exploring European law. To provide the proper background, the introduction reviews the use of interdisciplinarity for the study of European Union law in the literature. The contributions to the symposium have used a variety of interdisciplinary tools to reflect on questions relating to European law. These contributions are briefly reviewed in this introduction.

This contribution to the Symposium on Ecosystem Restoration and EU Law is concerned with the changing features of sustainability. It argues that the Commission is gradually articulating, next to the consolidated objective of sustainable development, an ecological understanding of sustainability. It discusses the meaning and relevance of such new understanding, by asking how ecological sustainability is formulated as a policy objective and jurified in the legislation stemming from the Green Deal. It then reflects on the distinction between ecological sustainability and sustainable development. The contribution finally presents some thoughts on the relevance that the ongoing process of complication of the legal construction of sustainability may have for the Green Deal.

This essay explores what can be learned from understanding EU law as a language in the literary sense of being a set of resources for manifold ethical and political expression and social action. As a contribution to new methodological approaches to studying EU law, it will propose a method highlighting how EU law can be studied in such a way by paying attention to the various linguistic and structural features of a legal text while, at the same time, diversifying the rationales through which we understand and make sense of such textual features. The Sayn–Wittgenstein decision will serve as point of reference in order to illustrate the value-added of this new theoretical and methodological insight to understanding EU law. This essay will conclude that it is not only worth taking the language of EU law seriously because it allows us to ’see’ more in the law, but also because it enables us to elevate the deeper ideas about Europe to the surface of the language we use when writing and speaking about EU law and to thereby contribute to a more productive dialogue about the foundations and future of the EU polity.

This article presents two related arguments. First, the limits of doctrinal analysis cut deeper than many EU lawyers realise. Most would probably accept that legal doctrine does not determine every legal dispute, but lawyers studying EU institutional balance often still assume that it can be deduced from the positive law what is good institutional practice. This paper argues instead that the allocation of EU institutional authority cannot be determined by the exercise of legal judgement, but instead requires the exercise of political judgement on the relative merits of different institutions. Second, this means that political and normative discourses and disciplines cannot be assumed to fall outside the domain of legal scholarship. What we need instead is a distinctive kind of legal scholarship that interweaves doctrinal analysis with normative political theory, broadly conceived. I will argue that political theory, in addition to evaluative value, has adjudicative value, provided that our theories are sensitive to the EU’s social and political setting and the constraints this setting imposes on what is realistically feasible.

Restoring ecosystems and enhancing biodiversity is one of many regulatory ambitions under the European Green Deal. The motivations to do so include, but are not limited to, enabling carbon removal by capturing and storing carbon dioxide from the atmosphere in land. The business model of such schemes is to help the EU and its Member States meet their climate obligations whilst safeguarding biodiversity, and when relevant, enable sustainable agricultural practices by creating transferable carbon credits awarded to land managers pursuing such practices. The idea of introducing market-based mechanisms in the management of ecosystem services is not a novelty, but the increasing prominence of carbon removals in the European Green Deal and its related legislative actions warrants careful consideration of legal quandaries about how such removals are to be carried out, why, where and by whom.