This editorial critically examines the European Union’s rearmament agenda, framed by the Commission’s Readiness 2030 plan and the Security Action for Europe (SAFE) Regulation, in response to geopolitical threats and possible US disengagement. While EU leaders present military investment as essential for safeguarding the ‘European way of life’, the measures proposed reveal a deep disjunction between rhetoric and reality. The plan falls short of establishing genuine strategic autonomy, as NATO remains central and procurement from US industries is reinforced, undermining the claim of independence. Moreover, by relying primarily on national spending and only modest EU financial instruments, the initiative risks entrenching asymmetries between Member States, strengthening national military–industrial complexes rather than building a coordinated European defence framework. By the same token, the legal dimension is equally fraught: the selective use of (national) escape clauses in the Stability and Growth Pact and the reliance on Article 122 TFEU for SAFE highlight the EU’s increasing dependence on creative but legally precarious interpretations. Substantively, the rearmament effort may erode the European social model, as higher defence spending is likely to erode welfare and public investment. Ultimately, the project reflects continuity with past crises: lofty integrationist rhetoric coupled with measures that entrench fragmentation and fiscal imbalance.

This article pursues re-constructive and explanatory objectives which are embedded in a theoretical and normative agenda. The introduction specifies its beginnings including biographical notes. The following conceptual history of the law of the integration project distinguishes three stages in which three distinct varieties of economic constitutionalism have been pursued, which all remained defective when measured against the commitments to democracy, social justice, and the rule of law. These defects deepened in the managerial responses to the financial crisis of 2008. Throughout the article, a counter vision of conflicts-law constitutionalism is developed step by step. The final section of the article seeks a theoretical backing for this counter vision in Lisa Herzog’s theory of ‘democratic institutionalism’. The epilogue sketches out how the project will continue.

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.

How has the European Union been integrated in the past? Legal academics have traditionally pointed to the Court of Justice and to the broader idea of an ‘integration-through-law’. Through its supranational jurisprudence, the Court – not the EU legislature – was thus placed at the centre of the European integration project. The underlying reasons for this dominance of constitutional ‘law’ over legislative ‘politics’ have thereby been the subject of three famous explanations: the ‘equilibrium theory’ (Weiler), the ‘asymmetry theory’ (Scharpf) and the ‘over-constitutionalisation theory’ (Grimm). What are the merits of these grand theories of European integration when measured against the historical record? This article hopes to explore this question in the context of the internal market. Its historical revision begins with an analysis of the respective spheres of normative and decisional supranationalism during and after a foundational period (Sections 2 and 3). This is followed by an examination of the meaning and significance of the Cassis de Dijon judgment in the late 1970s. Through this revolutionary case, a dialectical relationship between the EU Court (‘law’) and the EU legislator (‘politics’) emerges (Section 4) that ultimately leads to the spectacular rise of EU legislation (Section 5) after the SEA. This transformational relationship will provide the critical lens for a historical revaluation of the three grand theories of legal integration (Section 6).

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.

In this paper we identify and discuss three different strategies for taking up intersectionality in the space of European private law, ie, liberal ideal theories of social and private law justice, liberal nonideal theories of reparation, and private law abolition. While we caution for how intersectionality is taken up in the European space of private law, these strategies yield insights about how intersectionality may recast (European) private law’s role as a potential site to advance, or thwart, pursuits of justice. The three strategies imply (potentially radical) shifts in how legal scholars may understand private law justice. We suggest that (European) private law abolition might be the most promising starting point to think intersectionality’s significance for recasting dominant understandings of private law’s relation to (in)justice in the EU context.

This symposium brings together a group of legal scholars who participated in a research project called European Society. The project originates in a meeting of the two of us and a mutual engagement with our texts. In 2022, Loïc Azoulai published a short piece on ‘The Law of European Society’ in the Common Market Law Review. The same year, Armin von Bogdandy published a book under the title Strukturwandel des öffentlichen Rechts. Entstehung und Demokratisierung der europäischen Gesellschaft (Suhrkamp), translated in English as The Emergence of European Society through Public Law (Oxford University Press 2024). At the time of publication, we were unaware of each other’s work – evidence, perhaps, that the theme was in the air. Owing to our differences in orientation and style, we decided to set up a research group, with the aim of providing a new account of the experience of Europe in the current context, marked by disorientation and polarisation, but also widely shared calls for ‘more Europe’. Europe’s current condition and its future possibilities are deeply affected by what many have classified as ‘crises’ (financial and economic crisis, migration, rule of law, external threats), but also what some Europeans even experience as ‘catastrophes’ (climate change, digital revolution, pandemic, war). The original idea was that the concept of ‘European society’ might help to get a better picture of the Europeans’ situation as well as ideas for the future course.

Christian Joerges is a scholar whose work spills over the conventional boundaries between public and private law, social science and legal theory, law and public policy, empirical inquiry and normative philosophy. This essay brings into focus Joerges’s under-appreciated role as a prescient, critical intellectual biographer of European integration. It argues that Joerges’s work has helped to diagnose, explain, and dismantle three misconceptions or myths with which European integration has been saddled from its formative decades. These misconceptions are (1) that the European integration project is ‘self-legitimating’ and therefore politically neutral; (2) that the delegation of decision-making authority to supranational institutions is constitutionally neutral; and (3) that there can be an epistemologically neutral, authoritative disciplinary perspective from which to comprehend European integration. Breaking the hold of these misconceptions is an essential step towards gaining a critical understanding of the promises and limitations of European integration today.

The core of the contract between economic and monetary union is set in not so much the formally legal, if economically irrational and practically contentious, divide of the Treaties, but rather, the rules for governing the right balance of EMU are found in its economic governance framework, set up to condition national budgetary policies into optimal function in service of Union monetary policy. Within those rules we can differentiate two ‘worldviews’ of constitutionalism. The first we may refer to as ‘optimal function EMU’ where sovereigns are equal, democracies may pick their own socio-economic policy and make equally valid claims to be managed by the conflicts law approach of cooperation within the preventive arm of the European Semester based on Article 121 TFEU, and where we may pretend the economic-monetary divide erected by law is a real, tangible phenomenon. The alternative version of constitutionalism is found beyond ‘optimal function EMU’, in fact, as soon as any risk to the model arises. This worldview institutes a strict legal hierarchy that establishes monetary supremacy over the economic realm. Within this setup, the very existence and proper function of the single currency rationalise the ultimate truth – that all Member States are equal, but some are more equal than others. Can conflicts law constitutionalism offer a way to recalibrate unity and diversity in a format fit for the purposes of the contemporary financial and economic context, while simultaneously re-claiming the space for national collective choice and protecting Union values?

The European constitutional navigation of the noughties succeeded to stipulate that European integration had ushered European society (Article 2 TEU). This choice remains underexplored. In light of current European uncertainty, the contribution explores meaning and promise of European society. The concept can counter the Europeans’ incomprehension of their union by integrating their heterogeneous European experiences into one familiar notion. It shows their conflicts as normal and possibly productive, occurring in one society rather than between discrete Member States. It suggests to understand their democracy as a principled struggle for compromise. Not least, European society substantiates the EU’s new principled constitutionalism that goes against excesses of the ‘will-of-the-people’ approach.

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.

The EU’s 2022 Digital Services Act (DSA) requires large online platforms to assess and mitigate risks to various vaguely-defined and contestable values, including fundamental rights; public health and security; civic discourse; and people’s mental and physical wellbeing. The scope of these provisions is thus incredibly broad and they have unsurprisingly attracted significant academic interest. So far, most scholarship has taken a broadly functionalist approach: it accepts the basic premise that certain social impacts of platforms constitute risks which must be managed, and evaluates the DSA’s capacity to achieve this ‘effectively’.

In contrast, this article aims to step back and critically reflect on the underlying conceptual and institutional framework of systemic risk management, based on an explicitly social constructionist understanding of risk as a technology of governance shaped by competing political agendas. Drawing on critical literature on risk regulation from various disciplines and regulatory fields, it identifies two key themes. First, discursively framing political problems as risks tends to exclude issues less amenable to the ‘risk’ framing; to privilege technocratic expertise; and to depoliticise distributive and ideological conflicts. Second, the DSA’s institutional approach to risk regulation delegates primary responsibility for identifying and managing risks to regulated companies, creating well-documented risks of capture. Overall, both themes point to similar conclusions: the systemic risk framework will be highly favourable to the interests of the powerful multinational corporations it seeks to regulate.

In conclusion, however, the article notes that platform regulation may pose distinctive challenges that are not well illuminated by scholarship on risk regulation in other fields – notably because of the widely-recognised possibilities for political abuse of more prescriptive regulation of online media. It suggests some avenues for further research into risk politics in the specific context of online media platforms, in particular drawing on scholarship on risk management in critical security studies.

Many legal scholars and practitioners consider the German judiciary to be a reliable and cooperative interlocutor of the Court of Justice. German judges refer more and more constructive references than their peers in other Member States – or so the prevailing narrative runs. The present study seeks to dispel and correct this image as reference champion. It identifies three challenges to the preliminary reference procedure in German courtrooms: a complex procedural framework restricting the discretion and obfuscating the duty to refer (1), a reluctant judiciary (2), and instrumental uses as a tool of judicial contestation (3). The study proceeds in four steps. Starting from a doctrinal perspective, it sketches the intricacies of the German procedural framework and analyses how it may obstruct preliminary references. Taking a quantitative perspective, it places German references in relation to other indicators, such as population size, incoming cases, or the number of judges. Under such a lens, Germany finds itself at the lower end of the spectrum. This reluctance can be traced back to a bundle of factors, such as judicial hierarchies, workload, or lack of knowledge and trust. Shifting to a qualitative perspective, the study then explores the instrumental uses of references as a tool of judicial contestation, both externally regarding the EU and internally regarding the German judicial architecture. The study concludes by focusing on a new actor in the reference game – the federal constitutional court. Its two senates have approached the preliminary reference procedure with diametrically opposed logics: the second senate underlines the power of the last, the first senate the potential of the first word. It remains to be seen whether the first senate will carry the day and herald – as a model for the entire German judiciary – a more cooperative future for the preliminary reference procedure.

European studies have traditionally relied on the power of broad concepts to account for the experience of the European Union: be it integration, governance, market, or legal order. Many of these concepts originated in social sciences. Yet, one concept is conspicuously absent from this list: ‘society’ was seen as ill-suited for picturing European integration. This background makes the recent and pervasive return of the term ‘society’ in the EU institutional discourse even more apparent. The paper attempts to propose a framework within which to think of the EU and its law in terms of European society makes sense. First, it argues that this turn to society is a response to challenges posed to the core assumptions upon which EU law has been predicated. Secondly, it inquiries about the sort of society produced by the law of European society. Thirdly, it suggests a new development for EU law and EU legal studies, integrating in their technical and conceptual appartuses additional resources and critical knowledge drawon from social sciences and social theory.

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.

This review essay forms a contribution to the Dialogue & Debate symposium on Christian Joerges’s volume Conflict and Transformation (Hart 2022). The specific angle of this article is an interdisciplinary one that conceives of Joerges’s work as a boundary-crossing exercise between law and the social sciences. Aspects highlighted are the inspiration that his work finds in responding to Europe’s vocation, or realising the latter’s normative potential; the law-in-context quality of the approach, which combines inside and outside perspectives on what the law is and does, how it motivates and what it means; and the two-pronged ambition to take the law seriously as a legitimating force and to question, at the same time, the power of economic ‘facts’ and arguments, which sometimes overrule what seems legitimate. Moreover, this article considers the relevance and implications of two intellectual influences on Joerges’s work, one a more formative one (Habermas) and one resonating with recent experiences of crisis (Polanyi), and it follows the journey of Joerges’s reconstructive approach within European studies: between integration theory, governance approaches, and rethinking democracy in postnational constellations. As Joerges himself concedes, the normative vision that this yielded for European law and politics was overtaken by actual developments in the context of the monetary union, and conflicts-law constitutionalism became more of a counterfactual appeal. This article outlines how the critical edge of this approach could be enhanced by taking perspectives from critical political economy on board, which would also facilitate countering economic arguments.