This Article addresses the question of how to explain and justify the allocation of politically sensitive legal questions to civil courts in the European Union. It proposes a pluralist theoretical view on interactions of private law adjudication with legislative initiatives in the process of building a European political community. This is elaborated on the basis of a reconstruction of the interaction between judicial and legislative processes in three high-profile cases (concerning non-discrimination, housing and climate change) in light of three theoretical perspectives: social justice, constitutionalism and public sphere theory. The first two perspectives shed light on the legal-political dimension of private legal questions in the European Union and manners in which to handle the plurality of sources and institutions in this field. They do, however, not fully clarify the distinction and relation between Habermasian discourses of justification and discourses of application of law in European Private Law adjudication. The Article suggests that public sphere theory, with a basis in Fraser’s work on transnationalisation, can complement the theoretical understanding of the role of judges in European Private Law. It is submitted that the interaction between national and European levels of adjudication helps maintain transnational deliberative spheres in which the legal-political stakes behind private law can be discussed. This opens up space for the inclusion of different voices in democratic deliberations on questions of social justice. Private law adjudication may thus be considered to contribute to the initiation of discourses of justification which serve the re-imagination of a European political community.

This Article brings new perspectives on the well-known Viking and Laval cases, decided by the Court of Justice of the European Union (CJEU) in December 2007, by studying the processes and modalities of the construction of this case law as a major defeat for social Europe. It demonstrates that the political and legal implications of these two rulings were socially constructed by a variety of European actors (especially trade unionists and academics specialising in labour law) rather than legally inscribed in the rulings. In doing so, the author defends a constructivist approach in the analysis of European case law, both contextual and processual. The Article is divided into two parts. The first retraces the pre-ruling construction of the Viking and Laval cases, and shows that trade union and academic actors as well as parliamentarians worked to construct the judgements on these cases as decisive landmarks for social Europe. The second part considers the process of interpretation of the rulings after they were delivered by the CJEU. It evidences the central role played by trade union and academic actors in promoting a critical reading of the rulings, arguing that the Court subordinated social rights to economic liberties. The Article concludes by showing that this interpretation has tended to become subject to consensus, to the extent that it is now European common sense.

When the Charter of Fundamental Rights was published in 2000, it was the first time that an international human rights instrument had recognised the freedom to conduct a business. To understand how conducting a business came to occupy the status of a fundamental right, I undertake an examination of the drafting process of Article 16 in Section 2. Early drafts protected the freedom to pursue an occupation, before the freedom to conduct a business eventually became a freestanding entitlement. This was thanks to the influence of Convention members associated with the European People’s Party who were instrumental in ensuring Article 16 was added to the draft Charter. In Section 3, I critically assess the claim contained in the Explanations to the Charter that Article 16 was simply a codification of pre-existing entitlements deriving from the case law of the Court of Justice. In Section 4, I examine the impact of Article 16 Many of the limitations that constrain the scope of Article 16 have been weakened, or have not proved to be the limitations that were originally envisaged. The Court of Justice’s defence of select areas, such as consumer protection, has shielded the deregulatory potential of Article 16 from view. Yet Article 16 has had a real and damaging impact on workers’ rights across the Union. Protecting the freedom to conduct a business in Article 16 means that a remarkably broad range of actions taken in the course of running a business are now accepted as the exercise of a fundamental right.

This Article sheds new light on the long-running debate in EU legal studies about how intense the EU judicial review of complex and uncertain assessments requiring specialist knowledge could and should be. It argues that it is necessary to move beyond formulas and concepts hammered out in the judicial statements of reasons and consider how the institutional context affects legal epistemology. How likely is it that the judges form an independent opinion about the probative value of the presented evidence and the soundness of the administration’s specialist reasoning? How likely is it that their opinion is reliable? Answering these questions helps appraise the boundaries in which judicial review or proliferating administrative review by partly specialised boards of appeal foster the rule of law understood as the pursuit of non-arbitrariness. The Article examines recent case law of the EU Courts and the Board of Appeal of the European Chemical Agency concerning public health and environmental issues, in which complex and uncertain specialist assessments were prevalent. It contends that, due to institutional limitations of EU adjudicatory bodies, a further expansion of the rule of law in EU decision-making requiring specialist knowledge should be pursued through extra-judicial means fostering transparency, inclusiveness, and accountability.

In search of a climate-neutral Europe, the EU Green Deal presented agroecology as an alternative guide for food system transitions through explicit policy and regulatory actions. While the term agroecology is used in Green Deal policy documents, its meaning remains elusive in both policymaking and academic legal research. To explore existing regulatory frameworks’ potential to align with agroecological perspectives for food system transitions, this article analyses pesticide regulation, a core area of agricultural governance, using an agroecological framework. This article aims to contribute to the current legal debate in two ways: it presents agroecology as a framework capable of guiding and assessing law and regulation and illustrates, via a study of EU pesticide regulation, how this framework can be deployed in practice to evaluate legal frameworks.

This Article aims to elucidate servitisation through the lens of Hegel’s personality theory, which justifies property based on its role in shaping our identity. The growing prominence of servitisation enables us to interact with and derive benefits from things not only through ownership but also through contractual access. In this light, it is submitted that the personality justification offers a helpful theoretical framework to inform a clearer conception of servitisation, which in turn sheds illuminating light on its effective legal shaping and regulation. Through the lens of personality theory, I argue that long-term servitisation is functionally equivalent to formal property in promoting the actualisation of personhood, while the short-term counterpart supports the experimentation of personality. The relational nature of Hegelian property is reinforced in servitisation. Accordingly, a functional approach to property lends itself to the proper regulation of servitisation, where contracts could be employed to set out the governance framework for servitised property. Legal regulation on servitisation should play both protective and facilitative roles in the servitised economy.

Today’s world is less stable than the Cold War international system. Why didn’t the high expectations for a peaceful world materialise that existed 30 years ago? This Article singles out two interrelated trends that stem from mistakes made when it seemed that humanity, having learned from history, was entering a period of the ‘end of history’. This forms the very basis for today’s negative tendencies to flourish. The triumphant West tried to unify the whole world under one leadership and to make it uniform. Yet, the world is simply too big, complex and diverse for only one ideology, be it Judeo-Christian, Anglo-Saxon, Confucian, Muslim or secular liberal-democratic, to dominate. Therefore, those states that couldn’t or didn’t want to follow Washington, began to claim their own place and the right to go their own way. Until it is recognised that there is a value in acceptance of diverse ways of life within a society and in the existence of diverse political systems, economic models and societal arrangements, there will not be even a relative peace in the world. Equally, recognition and acceptance of balance of power in international relations is even more important than the adherence to the principle of separation of powers within states. The second trend is expressed in conflicts between elites and masses, whose grievances are exploited by populists. The idea that globalisation would lead, if not to the disappearance of the State, then at least to a considerable shrinking of its role, turned out to be wrong.