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.

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.

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.

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.

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 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.

In following the interdisciplinary spirit of this symposium, I emphasise the usefulness of the sociological approach of interpretivism, together with qualitative methods, by examining how EU legal actors perceived the Eurozone crisis and how they enabled policy solutions: financial assistance and policy conditionality. This case constitutes a legal conundrum because of how these solutions encompass and connect different forms of law – EU law, international law and private financial law – and how EU lawyers seek to protect the EU legal order from this hybrid arrangement by drawing the arrangement as closely as they can to the EU legal order. This in turn creates issues of accountability as the imposition of policy conditionality engenders litigation by EU citizens who were directly affected therein, raising the question of whether establishing liability for damages is possible in such a hybrid arrangement. Using interviews with legal actors and observations of court proceedings, I foreground the multiple meanings of EU law and explain how such an approach can expand our understanding of not only what EU law means to its practitioners, but also how these meanings give insight into the potential paths of EU law’s development. To interrogate these multiple meanings, I examine the crisis policy solutions as well as a set of court cases – Ledra Advertising, Mallis and Chrysostomides – that sought to hold the EU accountable for losses suffered because of these policies. Using these methods can partially overcome the opaqueness of judicial proceedings at the EU level, as well as give insight into the development of the legal arrangements being contested in court. A novel methodological element is the descriptive analysis of observations of court proceedings in Chrysostomides, where I demonstrate how the interactions between the lawyers and the judges shed light on how legal actors establish legal validity as a collective project.

Insights from Social Network Analysis reveal that the structure of the social network surrounding international courts is important for these courts’ ability to secure compliance with their judgments and by this to initiate social change. International courts like the European Court of Human Rights (ECtHR) invest growing resources in shaping their networks, recognising that these networks are necessary tools that can help them to influence society. This paper will focus on the ways social network analysis can facilitate a better understanding of the ECtHR. The paper explains how certain characteristics of the network surrounding the ECtHR determine the ultimate social impact of the court.

Community detection is a set of algorithms developed in network science to find meaningful sub-groups within larger groups. This article (1) outlines and evaluates the method and (2) shows how it can enrich ongoing debates about European integration. To this end, it uses the example of the approximation of laws, an enduring topic in European legal studies.

The article analyses the book Economic Constitutionalism in a Turbulent World edited by Skordas, Halmai and Mardikian, criticising the assumptions of societal constitutionalism and ordoliberalism on which it is based. The book concurs with the view that the current crisis of global legal institutions cannot be tackled going back to Nation States. Such an assumption seems to be inspired by societal constitutionalism à la Teubner. In contrast to traditional constitutionalism, which hinges on the dichotomy between constituent and constituted power, societal constitutionalism assigns a central role to independent institutions, whose main function is to avoid any hegemony of one social sub-system over another, in particular of politics over economics. The limit of societal constitutionalism lays in its assumption that the economic sub-system has its own rationality that the political–constitutional system can only irritate, taking for granted that the paradigm of that economic rationality is the one established after 1989, thus implicitly adhering to the neo-ordoliberal vision and legitimising its absolute immanentism. Coming to the materiality of the issues underlying the book, most of the contributions conceive globalisation as an engine for the increase of global prosperity. This confidence rests in the Ricardian theory of comparative advantage. However, the latter is valid only under condition of restrictions on the movement of capital. Another assumption made by several contributions is the theory of the varieties of capitalism, according to which individual models of capitalism tend to stabilise around certain production regimes whose key actors are large firms and business associations. According to an alternative, neo-Kaleckian paradigm, there is no natural convergence of the actors of the economic system towards a mutually beneficial institutional set-up, and it is quite unlikely that, without the external intervention of politics, the system can return to equilibrium.