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The legal experts working for the European Union (EU) institutions facilitate EU policy-making activities. But no less importantly, they also shape the evolution of EU law. They have an established presence in EU legal academia and exercise authority through epistemic means. In this role, they make an important contribution to defining the scope and meaning of EU law and the limits of institutional action. Previous research demonstrates that this contribution is largely perceived in positive terms; as ‘clarifying facts’. Yet, as Union officials, institutional legal advisers are bound by Staff Regulations, which prohibit them from acting against institutional positions. This article investigates the role of institutional legal advisers in EU legal academia, placing it in the broader context of the self-image of EU legal scholarship and its ‘enchantment’ with the EU as a political project. It finds that the borderline between institutional strategy and academic research often gets blurred. It argues that EU legal scholarship should maintain a critical distance from the institutions that it studies and re-define its self-identity as a reflective and critical rather than legitimating force. This would contribute to strengthening the EU by enabling democratic debate about its policy choices and their possible alternatives.
This article seeks to remedy a fundamental flaw in the debate about European integration and European Union (EU) law: the almost complete absence of a reckoning with the legacy of empire and imperialism. The article shows that the significance of EU law can be understood only against the background of the historical transformation of the European public law order with the decline of the European empires. European integration is an integral part of a new European public law order that finally replaced the public law order of the European empires – Droit Public de l’Europe or Jus Publicum Europaeum – in which the European states held a privileged place as the only ‘civilised’, and hence, sovereign states in the world. The post-World War II European public law order entailed a new vision for domestic public law, but also constituted intra-European relations anew, and established a new set of external relations between Europe and its former colonies. With the shift from ‘European’ international law to ‘universal’ international law in the twentieth century, European integration helped carve out a space for ‘Europe’ in a world where Europe was no longer the centre of gravity.
In the western context, law has two functions. It upholds normative expectations and it transforms social phenomena. The latter is expressed through the form-giving function of law, as law designates particular social phenomena, such as, for example, economic, political or religious. Inside such overarching categories, further subcategories can moreover be observed. In relation to economic processes, the legal institutions of competition, contract, corporation and property are, for example, classical examples of the form-giving function of law. The dual function of law is briefly illustrated through a genealogy of imaginaries of law distinguishing between four historically dominant types of law: ‘Law as purpose’; ‘law as a tool’; ‘law as an obstacle’; and ‘law as reflexivity-initiation’. On this background, ten core dimensions of what might become a new episteme of transformative law are fleshed out with the aim of answering the question to what extent it can act as an alternative to the previous four types of law.
In recent years, legal scholars have dismantled influential economic accounts of the private nature of money, demonstrating that money is better understood as a ‘governance project’ and a public resource that is created and regulated by the state. Legal theories of money could lend support to the ECB’s recent use of ‘unorthodox’ monetary policy to stabilise the euro, and could further support proposals for the innovative use of monetary policy to combat inequality. However, legal writing on money to date has primarily sought to challenge neoclassical economics – a body of thought that denies the impact that distributions of credit by the state play in shaping processes of value formation in the economy. Two further dimensions of the nature of money have received less attention from legal scholars to date: first, the question of how money comes to have an economic value (an important component of ‘moneyness’), and, second, how the international functions of credit money as currency in international trade and finance may limit the capacities of governments to manage money differently. In this article, I offer a revised account of the legal nature of money that is more attentive to the transnational nature of the legal regimes and institutions that enable the production of sovereign credit monies in the contemporary global political economy. My analysis complicates both the suggestion that the ECB can address inequality in the eurozone by means of unorthodox monetary policy and the widely made counter-argument that the only solution to the constitutional crisis in the European Union (EU) is the creation of a political sovereign imbued with stronger fiscal powers. I find that unless the current transnational legal arrangements that enable the production and governance of money are addressed, no states will be able to act as ‘centralised and legitimate political authorities’ that can control capitalist credit money in accordance with democratic imperatives.
This article puts forward a cohesive narrative to explain the contribution of European social policy to the judicial making of Europe. By making a case for the inclusion of social policy as part of the discourse on the constitutional practice of the Court of Justice of the European Union, together with focusing on a socio-legal deconstruction of four seminal social policy judgments of the Court (Defrenne II, Von Colson, Harz and Francovich), the article undertakes a systematic approach to tracing the contribution of the field, and more specifically of its labour and non-discrimination law strands. To formulate its socio-legal analysis, the article adopts an explanatory framework, which draws on Bourdieu’s concepts of capital and field, the theory of legal mobilisation and Moscovici’s minority social influence, and which is applied to the selected judgments as a case-study. The framework enables the analysis to shed light on the dynamics between stakeholders in the social dimension of the European legal field and to persuasively showcase how social policy case-law, despite its sui generis dynamics, merits to have a place in the conversations surrounding the transformation of Europe.
What role does the Court of Justice of the European Union (CJEU) play in holding European Union (EU) regulatory science, ie the science underpinning public regulation, to account for its epistemic quality? Since Pfizer, CJEU case law has strengthened the role of science in both EU risk regulation and litigation, whilst intensifying judicial scrutiny of scientific reasoning based on procedural standards. Scholars often welcome this approach as striking an adequate balance between effective judicial protection and institutional competence. Some praise the Court as an ‘information catalyst’ promoting procedures, in which epistemic quality is ensured through diligent consideration of and deliberation among all relevant voices. These debates, however, overlook the role of economic actors as information providers, in and challengers of EU risk regulation. This paper re-evaluates the modern post-Pfizer approach from a new, socio-legal perspective by studying, for the first time, the interactions between judicial review and the epistemic power of economic actors, ie their relative ability to influence what EU regulators know at the expense of other actors. We combine an epistemologically informed comparative institutional analysis with doctrinal critique of CJEU case law. Our findings show the need to rethink both legal standing and procedural review in EU risk regulation. Instead of catalysing inclusive procedures that open regulatory science to public scrutiny, the modern approach fosters an exclusive bilateral information exchange between the administration and the regulated industry. The Court reduces the function of process values, such as duty of care and reason-giving, to the protection of a small circle of actors, neglecting the public interest dimension of such values. Thus, the modern approach fails to address, and instead further entrenches the epistemic power imbalances inherent in EU risk regulation. We end by sketching out a normative and doctrinally sound vision of how CJEU review could contribute to EU expert accountability in a more publicly oriented way.
While legal analyses of political economy typically centre on events and processes within the market, this discussion argues that contemporary dilemmas requires attention to labour and productive activity at its edges and beyond. Questions surrounding labour provide an unparalleled vantage point from which to assess how groups are differentially situated within the economy, especially at moments of economic crisis and transformation. The constitutive role of law in market relations, in turn, makes legal analysis fundamental to understanding how risks and rewards at work are distributed.
Reflecting on the role of macroeconomic governance to work, evident in times of crisis in particular, and drawing upon concepts and tools developed within critical legal thought, this paper analyses two sites of labour, unpaid household care work and informal labour, that are at the centre of distributive struggles around work now. As the historical separation of the household and market labour discloses, transformations of legal form, and classification played a critical role in the simultaneous production of waged labour and valueless care. Similar processes are underway in labour markets now; thus, understanding the legal constitution of value and of work itself remains central to questions of inequality now.
Bargaining analysis as well as taxonomies of family law suggest the significance of a wide range of legal rules and their interaction to labour market outcomes and the position of workers. The analysis of informal work points in a similar direction, as contract, competition, and corporate law and beyond are all implicated in the growth of informality and precarity at work. Finally, uncovering the legal foundations of racial fragmentation at work requires attention to multiple legal regimes as well as the conceptual and ideological commitments that sustain them. All engage questions about the role, and transformation, of legal form, classification and consciousness within contemporary political economy.
On the occasion of the launch of the European Law Open, this article analyses two policy documents of the European Union (EU) on its ambitions in peace mediation, to think about what it could mean for European law to be open to the world. Reading these documents – ‘the Concepts’ – through the lens of the theme that I have been assigned for this opening issue – ‘Europe in the world’ – one discerns an outward-looking EU searching for a greater role in the international field of peace mediation. One also sees instances of eurocentrism: a set of assumptions about the superiority of European (or ‘western’) ways of knowing and doing. In these Concepts, the EU envisages sending EU mediators into the world – either to mediate themselves or to support mediation efforts by others. The Concepts also contain increasingly long lists of EU values to be carried along and distributed during peace mediation. But the Concepts do not consider that in the countries where the EU mediator arrives, this backpack filled with normative baggage may bring other associations. Without more explicit recognition of the EU’s obstinate baggage, the EU is unlikely to be an effective peace mediator or, indeed, a credible global actor. More generally, critical reflexivity could help the EU to address the lingering Eurocentric tendencies that these Concepts reveal. Such critical questioning by the EU of its own assumptions, as well as learning from perspectives from outside the EU or the past, can be a process of focusing on Europe in order to decentre it. That, then, could also be a mission for this bold new European journal.
Orders are judicial decisions designed to shore up fair and timely resolution of disputes. As written, detailed, and factual documents, they are reliable markers of procedural steps and a unique source of information about the inner working of an institution. This article examines all published orders of the European Court of Justice, drawing lessons from their use. The analysis demonstrates that the pursuit of efficiency and uniform application blurs the lines between the administration and judging. First, it centralises the institution, expanding the duties of the Registry and amplifying the role of the Cabinet of the President of the Court. Second, it bureaucratises the interpretation and the uniform application of European Union law. These processes are common in judicial institutions with no power over their dockets. But the particular European response, authored by the Court, also suggests its reluctance to forfeit the interpretive monopoly.
Inspired by the contributions of Poul Kjaer and Kerry Rittich to this Special Issue, this article extends the reflection on the role and potential of law for social transformation. More specifically, I attempt to build on a revised framing of the constitutive role of law to draw the contours of a transformative instrumentalism, where law functions as an instrument for the articulation of political and social objectives. My account shifts the attention from transformative law’s form to its content, based on the premise that engagement with ‘political’ economy necessarily entails an engagement with the substantive standards that shape social relations of production and define the nature and extent of exploitation. Yet, I argue that the endorsement of law’s constitutive function and the turn to law’s content need not lead to the kind of instrumentalism that exhausts itself in particular policy reforms or prescriptions to assume control over processes of legal coding. Relying on a tentatively redrawn conception of the constitutive role of law that draws from both legal institutionalism and Marxist perspectives, I suggest that instrumentalism may instead be transformative by prioritising material ends, leaving open the question of the concrete legal and institutional forms that will materialise them. The directions of such transformative instrumentalism involve an element of ‘mobilisational democracy’ against the insulation of the economy from democratic control; reforms generative of collective subjects and centres of democratic power (‘non-reformist reforms’); and a focus on the planning and coordinating function of law among diverse – but united in their objective – legal rationales and institutional forms.
This article detects a persistent imbalance between the zest for critical research and the thinness of critical methodology in the study of European Union (EU) law. The question that drives this investigation is: What can critique contribute to EU legal studies? The article draws on the methodological wealth of critical social theory to explicate how the critique of EU law could further evolve and why it matters. This analysis posits that the lack of adequate methodological engagement leaves EU law scholarship to drift between the problematic idea of unmasking critique, on the one hand, and that of supposedly non-normative critique, on the other hand. The article makes a case for a more dialectical method of critique to clarify how the critique of EU law is always preceded by a choice between competing rationalisations of society. These findings highlight that social theory should be of continuous interest to EU law scholars and that a socio-legal critique of EU law is not reducible to empirical research alone.
The article explores the Europeanisation of football, focusing on two dimensions of this process: its affective and regulatory dimension. Developments such as the creation of pan-European club competitions and growing cross-border movement of players mean that ‘Europe’ plays an ever more important role in football on an affective level. The same is true on a regulatory level, where EU law and policy have come to impact on various aspects of football, ranging from transfer rules, to club financing, to the sale of broadcasting rights. We argue that only by examining the interaction between these two dimensions can we truly understand what is ‘European’ about football. The article shows that there continues to be strong support in football for the cultural elements of the European Sport Model, including a commitment to local identity, sporting merit and solidarity. By contrast, its governance aspects are increasingly coming under pressure, as the recent European Super League saga illustrates. Our findings suggest that the EU can – and should – do more to improve regulatory standards in football and push for a greater representation of fans and other stakeholders that have currently no, or limited, voice in the football pyramid.
Katharina Pistor’s powerful critique of the key role that private law plays in creating private wealth, producing inequalities, and undermining democracy, raises the urgent question of what could be done to set things right or, at least, could be a step in the right direction. This article argues that a progressive European code of private law could be a meaningful part of the solution. A progressive private law code would be a code aimed at making progress towards a more just society, where there is less inequality and where we have more democratic control over our future. The progressive EPL-code would be completely different, in crucial respects, from the civil codes of the member states. It would be European (not national), be mandatory (not optional), have ‘constitutional’ ie primary EU law status (not merely secondary), consist of fundamental principles (not detailed rules), prioritise justice (not economic growth), and be radically democratic (not technocratic).
When are religious employers exempt from the prohibition of discrimination (i.e., when can they discriminate against non-adherents)? The European Union (EU) Equality Framework Directive exempts religious employers from the prohibition of religious discrimination, but the scope of the religious ethos exemption is disputed and its interpretation by the Court of Justice of the European Union (CJEU) in Egenberger and IR v JQ has been criticised for being ultra vires and for disrespecting the constitutional identities of the EU Member States. This article clarifies the religious ethos exemption, by examining the underlying legal and normative issues that determine its scope. It shows that the scope of the exemption depends not just on the Framework Directive but also on the relationship between EU law and national constitutional law and that between EU law and international law. Thus, this article not only provides clarity regarding the religious ethos exemption, but also uses these judgements as an opportunity to revisit these related constitutional issues, and in particular the role of the CJEU and EU legislature in defining the place of national constitutional identity in EU law.
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.
This article revisits the present and future of the direct effect principle and submits solutions for its appropriate understanding and enforcement. Once the topic has been put into context and it has been shown why direct effect is an evolving notion whose scope goes beyond the Van Gend & Loos judgement and the doctrine originating from it, the study presents five intertwined arguments. First, direct effect has two facets since, aside from a subjective-substitutive form of direct effect, there exists an objective-oppositive manifestation of direct effect, whereby a directly effective European Union (EU) provision entails the disapplication of national law, without either conferring immediately an individual right or replacing the domestic norm in governing the case at hand. Second, the article claims that the obligation to disapply is triggered always by primacy and direct effect, never by primacy alone. In fact, justifying disapplication on the basis only of the primacy principle and not on primacy and direct effect is likely to undermine the logic implied in the relationship between the EU legal order and domestic legal systems. Third, there are legitimate derogations from the obligation to immediately disapply a conflicting domestic provision with EU law endowed with direct effect in so far as they are admitted by the Court of Justice of the European Union (CJEU) on the condition that the replacement of a national provision by an EU norm may harm individual rights and/or question the national identity clause enshrined in Article 4(2) Treaty on European Union (TEU). Fourth, the test on clarity, precision and unconditionality for assessing whether an EU norm is directly effective, as it was conceived by the CJEU, is no longer a pillar in the conceptualisation and practice of direct effect. As a matter of fact, only unconditionality, in practice, proves to be the core element of direct effect. Moreover, direct effect and direct applicability are equivalent concepts since unconditionality, as the condicio sine qua non of direct effect, coincides with direct applicability. Fifth, a distinctive quality of direct effect, along with unconditionality, is the creation of an advantage resulting from the application of EU law and the subsequent disapplication of national law. This implies that an EU directly effective provision can never be only in malam partem (ie, detrimental for the individual) and thus disapplication, lacking the existence of an advantage for the individual, shall never come into play. The article concludes that the duty to refine the doctrine of direct effect must be performed, ultimately, by the CJEU. Indeed, only the CJEU can offer guidance to national authorities, since it has an interpretive monopoly on the ifs, whens and hows of direct effect. To this end, it is vital that the EU judges, by rejecting argumentative minimalism brought to its extreme, come to reassert their constitutional role and re-establish the common core of the EU system, beginning with the principles that created and shaped it.