In legal discourse, the Marshall cases (C-152/84 and C-271/91) have become known as landmark judgements for gender equality. Yet for historians, Helen Marshall’s legal journey is an invitation to make a broader claim of how to approach a landmark case in the history of European law ‘from below’, moving away from a binary analysis of European institutions on the one hand and national structures on the other. Based on original research using a wide range of newspaper articles, published documents from the European Court of Justice (ECJ) and archival documents, this article follows Helen Marshall’s legal journey from 1978 to 1993. Using Marshall’s individual role as a ‘heuristic tool’, the article argues that Marshall was a ‘legal entrepreneur’ of her own cause with her actions reflecting the British zeitgeist through the medium of European law. It demonstrates that the legal construction of the Community was by no means a project driven solely by elites. The article further nuances the notion of Britain, as a nation, as an ‘awkward partner’ by highlighting that Marshall, a British citizen, actively contributed to European integration within a complex of other actors.

This article conceptually and empirically explores the Interwar Era’s variant of the ‘electoral authoritarian’ regime-type, relying on a unique recategorisation of all Central and Eastern European states to systematically classify non-democratic regimes between the two World Wars. Modern electoral authoritarian regimes are notable for combining the ‘standard model’ of electoralist structural features common to contemporary democracy with identifiably authoritarian political orders. Electoralist regimes of the period were distinct from those of today, with a greater emphasis on anti-political dominant parties, the inheritance of 19th century-style parliamentarism in terms of both institutional and political culture, and a reliance on unaccountable apex executives who nevertheless allowed authoritarian forms of multiparty politics. The article also introduces the era’s primary alternative for institutionalized regimes that do not fit the simple label of traditional dictatorship or electoral authoritarianism: the ‘institutional-hierarchical’ model. This characterizes innovations in corporatist-style economic and sectoral representation, as well as explicitly top-down, non-electoralist authoritarian constitutional structures and mobilized, single-party institutions. The article reviews all Interwar regimes in the region, providing alternative regime conceptualizations, exploratory classifications, and an illustrative case-study of Poland’s post-1926 Interwar style electoral authoritarian regime, highlighting both the survival of older electoralist models alongside a growing movement towards both more personalist and institutional-hierarchical formats by the 1930s.

This article addresses questions about the identity of the subject of constitutional law from a historical-sociological perspective. It aims to reconstruct, beneath the surface of constitutional texts, the actual material subjects that commonly give rise to constitutions. To do this, it isolates the constituent conjunctures in which constitutions have typically been written, and it describes the social pressures that obliged members of different societies to articulate their subjectivities in constitutional fashion. It uses this reconstruction to suggest a new framework for approaching questions of constitutional subjectivity and legitimacy, as, contrary to more deliberative methods, it explains how experiences of military violence usually shaped the emergence of constitutional subjects. On this basis, it argues that constitutions typically acquired stable legitimating force, not by enacting the will of identifiable constitutional subjects, but by displacing such subjects into a manageable form, separate from their military emphases. It cautions against idealist theories of constitutional subjectivity, arguing that most constitutions create legitimacy for government specifically as they promote societal integration in procedures that are not defined by the subjects to which they attribute their authorship. It concludes by addressing some current examples of constitutional crisis, considering how these have been shaping by literalist understandings of constitutional subjectivity.

The article promotes a new methodological approach to examining the development of European law that significantly advances our understanding of European legal integration. Building on interdisciplinary debates on European law between historians, lawyers, and political and social scientists, the article argues for analysing European law by approaching a legal text from a bottom-up perspective. Our understanding of legal text includes all texts that jurists consider as legal and use in judicialised conflicts.

Examining how a range of actors have used legal text to shape conflicts instead of taking ‘integration’ (or lack thereof) as the ontological lens yields important new insights into the functioning of European law over time. The case studies in this special issue trialling our methodological approach show that, first, certain areas of European law come into view including non-discrimination, the environment, and human rights. Second, social actors in the Member States and beyond were from the beginning involved in co-creating these areas of law, which indicates that European legal integration has always been more than an elite-driven project. Third, actors have mobilised European law for various reasons, often not tied to ‘Europe’. They have used European law to translate a range of political issues into legal questions. Finally, legal knowledge and expertise – and lawyers – have been central to European integration even if this is not reduced to an understanding of the binary relationship between European institutions and the Member States.

When the Treaty of Rome (the Treaty) was signed, the legal profession believed it had no impact on its organisation. Yet, from the very beginning, the Directorate General (DG) Internal Market started to work on a directive that would facilitate the circulation of lawyers within the European market. This article is based on the analysis of the 16-year debates leading up to the adoption of the 1977 Directive, which facilitate the effective exercise by lawyers of freedom to provide services. It adopts a bottom-up, actor-centered approach, to understand the role of lawyers and the importance of legal professions in the construction of the common market. Using archival study, interviews and legal analysis, the article shows that the integration of European legal professions cannot be understood without studying the historical structures of each national profession. Moreover, the rallying of lawyers to the European project can only be attributed to the active interpretative work of multipositioned actors.

This paper explores the role of identity in constitutional law, moving beyond the dominant concept of constitutional identity. While many European constitutional texts reference various forms of identity – such as national, religious, or cultural – constitutional identity has been disproportionately emphasised in academic discourse. Through an empirical analysis of constitutional provisions and court rulings across 47 European states, this study demonstrates that identity plays a broader and more nuanced role in constitutional law than previously recognised. The paper categorises four types of relationships between identity and constitutional norms: identity as a right to protection, a basis for additional rights, a principle guiding constitutional interpretation, and an identity of the constitution itself. It highlights how constitutional courts interpret and balance competing identities, influencing the application of fundamental rights and constitutional principles. By highlighting examples that represent different models of identity systems, the paper reveals the necessity of giving scientific attention to the relationships between identities. Indeed, identities can undermine liberal constitutional values by privileging certain collective identities over individual identities and individual rights. Ultimately, the study argues that focusing solely on constitutional identity as an analytical concept to designate everything even remotely related to identity in constitutional law obscures the broader dynamics of identity within constitutional systems. It calls for a strict conceptual redefinition of constitutional identity in order to better understand how identity, in all its potential forms, continuously reshapes constitutional law and influences the evolution of democratic and human rights protections in European states.

Why do national jurists commit what appears to be blatant breaches of EU law even when they intend to comply? Instead of viewing such incidents as mere errors, I suggest one possible way of reconstructing them as meaningful social action. Drawing on Bourdieusian sociology I import the concept of allodoxia as a framework to understand the transplant of ideas about EU law into the national legal field. Allodoxia helps to unpack the structural tension that occurs between the habitual dispositions of the national jurists and the increased pressure from EU. Adding to this, I also use the notion of ontological primacy to conceptualise the symbolic dominance asserted by EU law over the worldview of national jurists, a dominance which obscures a proper understanding of the latter’s actions. I illustrate the argument with a case study of one such blatant ‘error’, when prominent Danish jurists in the late 1980s drafted and defended a buy-Danish clause in the tender materials for a major infrastructure project, the bridge over the strait of Storebælt. By insisting on the ontological parity of European EU law and national EU law respectively, and by using allodoxia as an analytical framework, we can better understand misapplication of law beyond the tradition error-paradigm, adding to our understanding of national reception of EU law. In a broader context, the Article aims to continue and broaden the introduction of a Bourdieusian approach to EU legal scholarship, in particular by drawing attention to the functioning of EU law within Member States.

One of the more remarkable developments in European law is the sudden ‘waking up’ of the European Court of Human Rights in the middle of the 1970s. This article, on the basis of extensive archival materials, follows grassroots actors as they discovered what had been a dormant part of European law, key academics with their own plans for the system and governmental officials debating in the corridors of Strasbourg in order to shed light on this development. The article argues this ‘waking up’ wasn’t the result of a top-down initiative by the Court, but rather the result of a bottom-up movement instigated by a variety of actors. As such, it ties into the recent debates on why and how actors turn to and shape European law (broadly conceived), as well as to why the Court turned active in this period. It makes the case for combining a bottom-up approach with the analysis of governmental policy- and decision-making to examine this change, as from the individual complaints grew a campaign to fundamentally change the entire system of European human rights protection.

The question to what extent EU law is constitutive of European society as articulated in Article 2 TEU is, at its core, a question about the nature, scope and limits of EU law. This article suggests certain clear limits to EU law’s ability to make the European society visible in law, or legible for law – let alone composable through law. The article is entitled ‘Is this Europe?’ as a direct challenge to the widely held belief that EU law is somehow constitute of European integration; that EU law contains all that European integration is, can and will be. Sure, the Europe that we see when analysing cases, treaties and legislation matters. But the ‘real’ Europe – the one that is felt, experienced, lived – resides in what happens due to, in spite, or irrespective of those cases, treaties and legislation. For EU law to remain sensitive to its society, then, EU law needs to reformulate the expectations it has of itself and create an analytical framework that allows it to transcend its immanent nature. This requires three changes to the way we ‘do’ EU law. First, more sensitivity to the material and relational context in which EU law operates. Second, creating space for forms of lay knowledge that are rooted in social praxis. Third, more ambition and playfulness in the way we – as scholars – ‘speak’ EU law.

The recent turn to market activism is transforming the politics around the state and capitalism, while significantly restructuring markets. We focus on one important but understudied element in this development: the securitization of market competition in the European Union. We argue that European political actors are strategically using specific narratives to construct competition policies in a new way, one that implicates the geopolitical standing of the EU and its national security. This contrasts with the longstanding view of EU competition policy as existing in a separate sphere, disembedded from politics, where market efficiency is paramount. To empirically capture this change, we undertake a systematic analysis of DG Competition Annual Reports, using a language-analysis schema over the decade from 2013 to 2023. Our findings demonstrate that this securitization strategy has been consistently increasing over time in the EU, evidenced in the rhetorical use of crises, the linking of markets to a larger set of issues and policy goals, the invocation of geopolitical pressures, and the framing of a need for the consolidation of EU power. We note, however, that this policy turn towards securitization of economic policy brings substantial political tensions given the EU’s limited democratic accountability.

It is difficult to disentangle, in EU merger control, between issues of law (subject to full review by the EU courts) and complex economic assessments (controlled for manifest errors). This article discusses, and puts in context, the judgement of the Court of Justice in CK Telecoms. It explains why some of the interpretative choices made by the ECJ open the door to the transformation of the nature and intensity of judicial review in EU merger control. Where the meaning of an interpretation of a legal concept can only be figured out ex post (that is, after performing complex assessments), the control of administrative action may become, de facto, deferential and process-oriented (as opposed to substance-oriented). Leaving constitutional considerations aside, this shift would have the advantage of giving the European Commission the necessary policy space to test new doctrines and act nimbly in a changing economic and technological landscape. On the other hand, it may come at the expense of legal certainty and may not necessarily increase the quality of decision-making.

EU legal scholarship’s recent ‘turn towards society’ demands new approaches to studying how EU law has been experienced and shaped both at present and in the past. Yet, there has been relatively little research on the engagement of societal actors with European law beyond a narrow focus on litigation. This article looks at a more indirect engagement with legal norms. Using the contested compliance with the EC’s 1982 Seveso directive on industrial safety as a case study, it uncovers the pivotal role that individuals and societal organisations played in procedures that have thus far been considered highly institutionalised: the infringement proceedings started by the European Commission. By tracing how the problem of preparing for disaster came to be regarded by societal actors in Italy and the Netherlands as both a legal and a European problem, it advances an approach showcasing that societal actors experienced EU law less as a separate category and more as part of a broader continuum of solutions to a societal problem.

The Digital Services Act (DSA) is a critical piece of the procedural puzzle of generating a safe social media environment. This article highlights how the DSA’s ambitious provisions regarding content moderation rely on psychological assumptions and inferences about behaviour, yet do so in the absence of extensive empirical behavioural evidence. The difference between how individuals are assumed to behave and evidence on how they actually behave is a crucial element in the complex landscape of effectively moderating content on social media. For this reason, the article sheds light on the value of behavioural research in understanding preferences, incentives and decisions, and the role of such information in interpreting and developing legal provisions. Specifically, through explaining the results of a novel experimental study designed with the DSA in mind, the article offers insights on certain decision-making processes, and how this evidence can steer away from unfounded suppositions to help interpret and apply the DSA against the reality of behaviour.

The concept of constitutional identity has recently been invoked to impose limits on fundamental rights. In this article, I explore the relation between constitutional identity and fundamental rights and argue that constitutional identity – when properly understood – does not stand in tension but rather presupposes respect for fundamental rights. In the first part of the article, I develop a conception of constitutional identity as a set of normative commitments of a community that reflects its shared experience of establishing, and being subject to, a constitutional form of authority. In the second part, I argue that, while different constitutional identities can be idiosyncratic, they must incorporate respect for fundamental rights if their claim to reflect such common experience is to be credible. The upshot of the argument is that fundamental rights should not be understood as external constraints that limit the scope of constitutional identity, but as internal requirements inherent to the concept of constitutional identity. Although this understanding does not eliminate the difficulties which arise from different interpretations of fundamental rights, it does allow for a more productive engagement with constitutional identity claims, and for analysing them in light of fundamental rights standards they must already accept.

This paper examines some institutions of French public law and their transformations induced by European integration. It shows how institutions rooted in a specific political culture that long aimed at ensuring political liberty through the active role of la loi have been challenged by other institutions designed in the first place to protect civil liberties. It argues that the loi-based republican institutions of public law, that were inherited from the French Revolution and 18th century political thinkers, such as Montesquieu and above all Rousseau, have been significantly reshaped. That did not happen through politics, nor through another ‘French-style’ revolution. Ironically enough, it happened more modestly through law, within the meaning of le droit (and courts) as opposed to la loi (and the legislator), that is through those very means of political change that Republican France had consistently rejected ever since the Revolution. The French example showcases how paradigmatic political changes, from messianic republicanism to global constitutionalism, may thus occur, without a revolution, through the smooth medium of (European) law.

This article examines the process of drafting the authoritarian Portuguese Constitution of 1933, which took place during the military regime. The aim is to identify the powers involved, their objectives and the strategies they developed, and to find insights that shed light on the adoption of constitutions by authoritarianisms. The results suggest that conflict between political forces is endemic to the constitutional process, and that those who hegemonise support and aim to demilitarise the system are able to impose the new constitution even without guaranteeing the existence of democratic political parties. There is also a promising point of analysis: the emergence of an authoritarian constitution is based on path dependence, ie, it has many links with the material constitutionalism that precedes it, where there are already normalised authoritarian elements.

This article proposes a framework to understand questions of fairness in EU law. It builds on the scholarly literature on the meaning and scope of this concept, to then consider its relevance to legal orders and specifically the European Union’s. Having set out an umbrella definition of fairness as a legal principle, the article applies it to a specific example: namely, the system of border procedures introduced by the new asylum and migration pact. The objective of this paper is twofold. Firstly, it aims to provide a blueprint for discussing issues of fairness in the EU beyond a specific area of law and policy. Secondly, in concretely adapting that blueprint to the specificities of the ‘case study’ analysed in the paper, it sheds light on the degree of its (un)fairness.