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.

Much existing social commentary and scholarship around the regulation of the European digital economy is focused on how societies could better regulate that economy and its associated harms. Such analyses often portray a problematically viewed order as ungoverned, or not effectively governed, by law. Instead, I argue for more (re)descriptive analyses on how our pre-existing legal structures powerfully create order in the European digital economy. I explain why we should explore the productive connections between pre-existing European legal arrangements and socio-technical order, and discuss what such exploration could entail. The article covers three complementary ways in which legal arrangements are productively connected to sociotechnical order: as tools of ordering to address problems and promote values; as tools that can also enable projects unintended and unforeseen by policymakers; and as constitutive of technologies and other forms of order. It provides concrete examples of these productive connections from various contemporary struggles within the governance of the European digital economy. I argue that focusing on the analysis of productive connections may shed light on how pre-existing legal arrangements are baked into and shaped by the European socio-technical order. As the current order of the European digital economy is characterised by massive inequalities, these analyses can also direct our attention to how our pre-existing legal arrangements can produce and reproduce inequalities and oppression. Analyses of pre-existing legal arrangements might produce different attributions of responsibility and possibilities of contestation than analyses of legal deficiency.

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.

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.

European electricity regulation has evolved to include a novel category of binding sectoral rules known as terms, conditions, and methodologies (TCMs). These are created within a regulatory framework outlined in delegated Commission regulations by private electricity firms and approved by technocratic agencies, most notably the EU Agency for the Cooperation of Energy Regulators (ACER). Despite their technical nature, TCMs have significant economic impact. This prompts frequent appeals of ACER’s TCM decisions, questioning ACER’s role and the overall institutional equilibrium of the TCM procedure. ACER’s TCM decisions are subject to dual-level legal review – internal by ACER’s Board of Appeal and external by European Courts. This paper uses two case studies to examine how dual-level legal review impacts the institutional balance of the TCM procedure. We find that the two levels of review engage poorly, so that contrary to expectations, legal review creates uncertainty rather than clarity, allowing for considerable pragmatism. These findings show the importance of considering legal review when studying sectoral governance. Policy implications are also significant, as the identified issues inhibit innovation and problem-solving, the raison d’etre of the TCMs.

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.

Money pushes sports to extremes. As the rewards for success grow, so does the pressure, with sportspeople pushing themselves ever harder. In equestrian sports, this can mean pushing the horse as well, too often to the point of abuse. This article discusses the beautiful side of equestrianism as well as its darker side, which is a bitter reality for many competition horses. It sets out a comparison of legal standards for equine animal welfare (at the level of international law, EU law and national laws) as well as those coming from sports laws. It also examines dependencies between animal protection rules under EU law and animal protection rules under the laws of individual EU Member States concerning equestrian sports. It aims to answer the questions of whether equestrian sports constitute a general exemption to their being considered animal abuse and on what grounds this exemption might be changed in the future.

This Article addresses the pressing issues surrounding the use of automated systems in public decision-making, specifically focusing on migration, asylum, and mobility. Drawing on empirical data, this Article examines the potential and limitations of the General Data Protection Regulation and the Artificial Intelligence Act in effectively addressing the challenges posed by automated decision-making (ADM). The Article argues that the current legal definitions and categorizations of ADM fail to capture the complexity and diversity of real-life applications where automated systems assist human decision-makers rather than replace them entirely. To bridge the gap between ADM in law and practice, this Article proposes to move beyond the concept of “automated decisions” and complement the legal protection in the GDPR and AI Act with a taxonomy that can inform a fundamental rights analysis. This taxonomy enhances our understanding of ADM and allows to identify the fundamental rights at stake and the sector-specific legislation applicable to ADM. The Article calls for empirical observations and input from experts in other areas of public law to enrich and refine the proposed taxonomy, thus ensuring clearer conceptual frameworks to safeguard individuals in our increasingly algorithmic society.

This contribution analyses the current situation of the implementation of the Rule of Law in the EU focusing on three essential aspects: the role of Article 2 of the TEU as a legal paradigm, the issue of effectiveness of secondary law to strengthen Supranational mechanisms for the defense of the Rule of Law; and the thorny issue of the primacy of EU Law in the current Era of European Integration.

This Article draws on research into precedent and the European Court of Justice to argue that it is distinctive in almost never retreating from a standpoint it has taken, or overturning an earlier judgement, by contrast with other Supreme Courts where this is a more common occurrence. The Article then considers the implications of this finding for research into the relationship between the Court and other actors, such as Member States, litigants and institutions. It suggests that in considering how the Court may be influenced and constrained this research takes insufficient account of its apparently limited capacity to change doctrinal direction. Evidence of doctrinal path dependence needs to be a more central part of discussions of the Court as a relational actor.

The concept of a systemic fundamental rights violation refers to a particular set of violations that are both widespread and embedded, so their reoccurrence may be assumed to be likely. It takes on at least two distinctive roles in EU asylum law and policy. One role is linked with the functioning of the principle of mutual trust, a principle that obliges Member States to recognise each others’ systems and decisions, presuming them to be legal, apart from exceptional cases. In this context, the principle sets the standard from when the presumption of legality is rebutted. In its conceptualisation and application, it is in tension with European human rights law, and, for a period, set up frictions between the CJEU (in NS/ME and Opinion 2/13) and the ECtHR (in MSS and Tarakhel). This tale of judicial frictions is not merely of historical interest. Its legacy is, we conclude, a thin concept of systemic breach, characterised by an over-individualized approach to assessing the human rights risks. The second role for the concept of systemic violations relates to embedded violations, including at the EU’s external borders. We demonstrate the utility of this other invocation, in particular as systemic breaches often signal deeper rule of law issues both within particular national systems and embedded within the Common European Asylum System (CEAS). We illustrate that the CEAS itself brings about systemic human rights violations. Identifying and responding to the “systemic” in asylum increasingly relates to the credibility of the EU as a Union based on the respect for fundamental rights and the rule of law.

This paper aims to question the dominance of human rights as the primary normative framework for European social media regulation, and academic research in this field. Analysing EU legislation and recent ECJ cases, it shows that issues like discriminatory content moderation, profiling, and promotion of stereotypes cannot adequately be addressed within a human rights framework. The centrality of individual rights in the EU legal regime not only fails to address collective issues, like platforms’ influence on culture and social norms, but cannot even offer effective, equal protection to individuals. In policy debates, the depoliticised and individualistic language of human rights can legitimise corporate activities and downplay important questions about the political economy of this privatised, highly-concentrated, advertiser-funded industry. The paper also considers interpretations of human rights as structural conditions or collective values, and argues that they cannot fully overcome the limitations discussed here. Given the entrenched role of fundamental rights in EU law, critics of social media cannot avoid relying on them. However, academics should also seek to develop more explicitly political critiques, based on alternative normative visions.

The term ‘competition’ is a core notion for social and economic thinking and the organisation of markets. Nevertheless, this paper shows that there is no single acceptable economic imaginary ascribed to the notion in Europe. The search for the meaning of competition is an ongoing journey, from the EU’s very inception 60 years ago to the present day, which is inherently tied to the objectives, scope, and boundaries of EU (competition) law and to socio-economic transformations.

The paper first reviews the history of the notion in both common-usage language and in legal-economic thinking. It exposes the emergence of three parallel, partly conflicting, imaginaries influencing the notion in EU competition law: Keynesian, ordoliberal, and neoliberal. After demonstrating that no single imaginary was adopted by EU primary, secondary, or soft laws, it applies Critical Discourse Analysis to the Commission’s annual reports on competition (1971–2020) in search for the meaning of competition. The paper reveals that the notion of competition had acquired one meaning in ‘hard’ contexts of the enforcement (scope of the prohibition of competition; exceptions or justifications for allowing otherwise anti-competitive behaviour), and another meaning in ‘softer’ contexts (mandates of the competition rules, and to a lesser extent – selection of enforcement priorities). While the ‘hard’ contexts have experienced a transformation from Keynesian and ordoliberal imaginary of competition to a neoliberal notion; the ‘soft’ contexts still invoke a broader notion reflecting influences from all three theories.

Finally, the paper argues that although the lack of a clear definition for competition undoubtedly raises challenges relating to the rule of law, legal certainty, and uniformity, its ambiguity also serves as a powerful tool in safeguarding the durability and legitimacy of competition as an economic imaginary. It allows tailoring the notion of competition to changing legal, economic, and social conditions without a Treaty amendment.

Europe’s aggravating housing crisis lies in the blind spots of law. While central in constructing housing both as a home and as an asset, law bears the task of mediating between housing’s multiple – social, economic, and cultural – dimensions. However, inner-legal fragmentation and a legal imaginary of property, the nation state, and its welfare system have depoliticized, deflected and rendered inaccessible the ‘housing question’. Turning to tenancy contract law in particular, this article argues that the ‘social’ orientation of this early example of a ‘materialised’ field of contract law is not only ill-suited to reflect the recent structural shifts in the housing market brought about through financialisation. Tenancy contract law has effectively taken a conservative drift by claiming to adequately administer the bilateral landlord–tenant relation while being insensitive to macro-level developments. Tenancy contract law reindividualises tenant responsibility in the eye of hardships whose roots lie outside the contractual sphere and thereby furthers, rather than curtails, neoliberal housing policies. As a reaction, the article proposes political economy as a conceptual vantage point from which to develop a ‘holistic housing law’. Such a perspective combines a concern for democratic and collective agency with careful attention to law’s tacit and technical role in shaping the flow of finance and the techniques of landlords’ governmentality. Part of this is a ‘transformative tenancy law’, to be reformulated to protect not against landlord bargaining power in the first place but against a hegemonic and expansive market rationality that structurally corrupts the social and material meaning of housing.