1. From the social to society
European studies have traditionally relied on the power of broad concepts to account for European integration. Such concepts, many of which originated in social sciences, were adjusted to capture the special meaning of supranational Europe: examples are integration itself, turned into ‘European integration’;Footnote 1 power, used to describe Europe as a ‘normative power’;Footnote 2 market, inserted into the overarching reference to ‘Common/Internal Market’;Footnote 3 but also legal order, with Europe and its law defined as a ‘new legal order’.Footnote 4 These concepts have helped scholars as well as actors of supranational Europe to unlock and communicate the meaning of the disparate practices that developed behind this unprecedented institutional experience. One concept is conspicuously absent from this list. ‘Society’ was seen as ill-suited for picturing European integration.Footnote 5 This is comprehensible enough. From the outset, it was clear to the actors and observers of European integration that some of the material bases for a conceptualisation of Europe as a unified social whole were missing. Arguably, there has hardly ever been any widespread form of personal identification with Europe as a whole, a full-fledged structured European division of labour, an all-encompassing system of fiscal redistribution, or a dense field of political, cultural and social interaction among social groups at the European level.Footnote 6 The point of European integration was precisely to build a new institutional and socio-economic order that could persist without the support of a pre-existing European cultural and social system.Footnote 7 In 2006, in response to the question ‘Is there, or can there be, a “European society?”’, Claus Offe gave a clear answer: ‘Europe is not a state and hence not a society’. Footnote 8 Ten years later, Damian Chalmers echoed: the EU is a functional organisation as a result of which ‘there is also no EU legal vision of collective being as a social form, a notion of society’. Footnote 9
Yet, the reference to the ‘social’ was an essential feature of the European project: postwar Europe was marked not just by the setting in place of a common market and new structures of peaceful coexistence among European states, but also with a concern for the social modes of existence of Europeans.Footnote 10 Indeed, European integration was, from the start, a means of ‘assisting through the expansion of basic production {of Member States} in raising the standard of living’. Footnote 11 Social existences featured under concerns for the ‘standard of living’ and ‘working conditions’ of Member States’ nationals. Within the European Communities, ‘Social Europe’ began as ‘a means of securing market integration’. Footnote 12 It originally encompassed free movement of workers, gender equality with a focus on equal pay at work, health and safety in the workplace and worker protection in business restructuring. It then developed, as the internal market deepened, as a broader form of social and risk regulation.Footnote 13 In the EU, the ‘social’ denotes a set of norms, principles, and legal frameworks aimed at regulating a market space on a transnational level, by correcting its failures in terms of information and participation in the market.Footnote 14 As such, it is not concerned with society, understood as a field of social practices, interactions and relationships between individuals and social groups, which is fraught with instances of conflict and cooperation.Footnote 15 Embedded into a ‘social market economy’ and then partly absorbed by Economic and Monetary Union,Footnote 16 EU law has, in fact, been characterised by a disregard for social practices and local conflicts.Footnote 17 It has even been said that European law was an endeavour to obfuscate the element of struggle inherent in society.Footnote 18
This background makes the current shift that occurs in the discourse of EU institutions even more apparent. References to society have become pervasive in recent years.Footnote 19 This concept is usually invoked in connection to problems perceived as threatening, due to their magnitude and combined character, the basic material and moral conditions for the reproduction of Europe’s national societies.Footnote 20 These problems are linked to major disruptive events, whether crises or catastrophes, such as climate change, the Covid pandemic, or the return of war on the continent. Equally significant catalysts include the digital revolution, the rise of illiberal forms of populism, the panic of public opinion – largely instrumentalised by a part of the political class – over the arrivals of migrants and the place of Muslims in society. Another recent key driver is the transformation of the international economic order characterised by fragmentation and weaponisation of trade and external policies. In the context of these events, the European Commission rhetorically appeals to the notion of European society. On the one hand, it has stated that it is ‘determined to be a front-runner in the transition towards a climate-neutral society’ as well as to establish a ‘digital society, based on European values and European rules’. On the other hand, the Commission is adamant that the anti-LGBTIQ+ law recently enacted in Hungary is ‘a frontal and serious attack on the rule of law, and more generally on European society’. The first series of statements refers to the fact that the EU is committed to protecting the critical ecological, technological and social systems upon which the reproduction of society depends. The second refers to the way in which Europeans are required to understand themselves as living in a liberal democracy. In other words, European society is about the protection of the ‘seen but unnoticed background of everyday life’, ie, both its material bases and normative foundations.Footnote 21 The notion is mobilised by EU institutions with the aim of ensuring that Europe’s institutional and social patterns of relationships remain stable, governable and cohesive. This is clearly an attempt to legitimate EU authority.
This discursive shift has been given a legal form. It has translated into the confection of broad systems of rules such as the European Green Deal, NextGenerationEU, the Pact on Migration and Asylum, the Digital Services Act, Digital Markets Act and AI Act, the Strategic Autonomy rules or the European Pillar of Social Rights acquis.Footnote 22 These bundles of rules compose what might be called the ‘law of European society’, characterised by three main features. First, it develops in areas that were once deemed to remain outside the realm of EU competence.Footnote 23 These areas relate to ecosystems (eg, soils, forests, fauna and flora), social systems (eg, energy, communications, security, healthcare), and basic patterns of social interaction (eg, migration, work, religion). Second, it relies on a set of techniques, whether it is planning, funding, ruling, conditionality, knowledge production (ie, expertise, risk assessments) or joint purchasing mechanisms that are not new but are combined in such a way as to give rise to ‘institutional variation’, and potentially to a new constitutional arrangement.Footnote 24 Third, this amounts to a regulatory model that reintroduces ‘the question of social value’ into the development of EU law.Footnote 25
Such a regulatory model does not make full sense in the narrow terms of market and inner market failures in which EU law has been usually approached.Footnote 26 Indeed, it is not merely about setting limits to markets or integrating non-market aims into internal market law.Footnote 27 Rather it consists in a form of instrumentalisation of the internal market with a view to achieving public purposes. The law of European society is concerned with steering economic and social activities towards the achievement of a set of political objectives (climate neutrality, strategic autonomy), while subjecting them to the respect for specific political and legal values (the rule of law, fundamental rights, pluralism) and responding to the risks these activities entail for vulnerable social groups, as reflected in the terms ‘just transition’ and ‘social risks’.Footnote 28 While not introducing new objectives and values, the law of European society reconfigures them in a specific way. As Kampourakis puts it: ‘this corresponds to a reconfiguration rather than an overhaul of the political economy of the Union’. Footnote 29
Notably, this reconfiguration is far from being stable. It is contested and gives rise to various forms of resistance. It is subject to critique and ‘backlash’ both within Member States and the European institutions themselves. Moreover, the very concept on which this model is based, ie, ‘society’ or ‘social totality’, is being challenged by the very issues it is meant to address: climate change undermines the notion of a human-based society;Footnote 30 the digital transformation destabilises the traditional notion of social interaction;Footnote 31 the rule of law and democratic backsliding in some Member States defies the idea of an overall normative agreement at the foundations of European society.Footnote 32 One might think that there are other concepts that are less problematic than society to frame the current challenges in the EU, such as the ‘planetary’, ‘earth’, or ‘empire’.Footnote 33 Each of these notions carries its own set of problems. And yet, I maintain that it still makes sense to propose a framework accounting for Europe and its law in terms of European society. This is not just because, as recalled by Orford citing McKenzie, ‘we need to subject the language of the times to its own critical pressure’. Footnote 34 It is also because the concept of society belongs to the domain of social theory, which can furnish a critical perspective on the world that the discourse of European society promises to deliver.Footnote 35
I should like to use the critical potential enshrined in social theory to assess and critique the institutional concept of European society. In other words, I propose to turn the concept into method. European studies have long been concerned with questions pertaining to political theory, ie, questions concerning forms of power and the relationships between institutions and individuals in a given polity. These remain, of course, important questions to pose to assess the recent development of the EU. But looking at European law through the critical prism of society should allow us to emphasise other important considerations relating to the ways in which social groups and individuals interact with each other, how each of them relates to their own conditions of existence, and how these groups could live together. Social theory is a vast field.Footnote 36 I will refer to it selectively and in an instrumental way, in order to identify the governance and social structures set up by the EU in various sectors and analyse the social pathologies they may give rise to.
The argument within which I will place this analysis has three dimensions. Part II suggests that the discourse of European society and its legal embodiment is a response to external challenges affecting the core assumptions upon which the EU and its law have been built. Part III wonders about the kind of society thus produced by European law. It explores three major problems resulting from this development. The first refers to the satisfaction of basic needs essential for the reproduction of decent conditions of living. The second relates to the ability of Europeans to identify with others’ condition and to account for otherness. The third concerns the recognition of minority groups and singular individuals in society. Analysing these problems requires different concepts than those conventionally used in EU law. It is there that social theory helps. In Part IV, it will appear plainly that the main issue with the way in which the EU law deals with these problems is that it tends to reduce complex social practices and singular conditions of existence to standardised institutional practices and knowledge. Asking how EU lawyers should think then about the law of European society, I thus suggest that this requires enriching the technical and conceptual repertoire of EU law on the basis of social theory and social sciences.
2. The law of European Society
What makes the concept of European society so attractive in Europe today? European society is the result of a discursive formation used in order to structure the conversation about Europe, create a renewed sense of belonging and justify the development of a new regulatory model. But I start with the hypothesis that there may be more to it: even if in the most inchoate terms, the signifier ‘European society’ is a response to challenges posed to core assumptions upon which the EU and its law have been predicated. These challenges refer to a sense of finitude of the European project, of friability of its legal authority and of fragility of its legitimacy basis. Whether these challenges are real or mostly perceived is a question that goes beyond the scope of this article. My account of the turn to European society is more descriptive than explanatory. I am mostly interested in attempting to make sense of it and in analysing its implications. The essential meaning of this turn is conceptual. It is to respond to cracks in the conceptual foundations of European integration. In this response lies a promise: that of recovering stability and cohesion in social interactions, in a context of major disruptive events.Footnote 37
A. European construct
Perhaps the best way to enter the conceptual world of European integration is to return to an old statement produced in 1965 by Roger-Michel Chevallier, who was then acting as référendaire at the European Court of Justice.Footnote 38 When invited to take part in the then vivid debate about the methods of interpretation of the Court of Justice, he wrote the following:
I think that the key to all this is to be found in the simple fact that the Court […], instead of confining itself to noting in a mechanical way the wishes of the authors of the Treaties, seems now to consider the Common Market as a fact, of the existence of which it takes judicial notice and from which observation it draws the necessary consequences. Henceforth, it will be seeking less the ‘effectiveness’ of the Treaties in the ordinary meaning of the term, i.e., those stages through which it is proper to pass in order to achieve an aim, and which the authors of the Treaty certainly foresaw and allowed for, than the necessary consequences of this aim considered as settled.Footnote 39
In this extract lies an original conception of law’s effectiveness. Interpreting European law is not just a matter of assigning a meaning to a norm in view of ensuring its useful effect. It is also about positing a massive institutional fact, ie, the Common Market, and then striving to make it real. The ‘Common Market’ is something to be postulated and constructed, rather than given and recognised. Thus, EC/EU law is conceived as a set of rules of construction. Free movement rules have been central to this construction: they confer a legal form on economic transactions and social interactions that develop at the intersection of different domestic orders, and which each of these orders, considered in isolation, is not equipped jurisdictionally or prepared politically to recognise. Their way of operating is not to build a brand-new reality but to displace acquired positions of certain economic or social actors on domestic markets and to carve up a new distribution of roles and powers compatible with the establishment of the internal market. Free movement rules aim at reshaping domestic socio-economic orders and open them up to each other.
But, in this extract, ‘Common Market’ refers not just to an institutional fact. It is also an epistemic construct: a site of observation, a mode of representation, ie, a standpoint placed above the fray of interstate relations and from which to frame, assess and govern the situation of states, economic operators and individuals.Footnote 40 A set of specific interpretive techniques (eg, meta-teleological interpretation, autonomous interpretation),Footnote 41 legal operations (eg, the institution of new legal concepts, recourse to structural principles),Footnote 42 and legal doctrines (eg, the autonomy of EU law, ‘effet utile’)Footnote 43 allow EU law to duplicate the fragmented process of integration and think as if the ‘Common Market’ were ‘a grand idea of order (…) to which participants are ready to subordinate their national interests and their national hierarchy of values’.Footnote 44 As a result, the factual and conflictual realities are pushed out of the plane on which EU law operates.
It is this conception that is now being challenged. There is an increased sense that, while being enmeshed in ever denser webs of interdependence, European societies are structurally embedded into beyond-control natural and socio-technical processes (climate change, digital revolution), dependent upon external resources that Europe does not own or control (critical raw materials), exposed to so-called or perceived ‘out-of-control’ social phenomena (migration, disinformation), subject to exorbitant ‘infrastructural powers’ (platforms), and surrounded by external actors who are rivals or even ‘enemies’ (USA, China, Russia). In retrospect, how striking and hackneyed are Jean Monnet’s words uttered in 1963, which are at the roots of the European project: ‘Today, in our industrial countries of the Western world and elsewhere, we are acquiring an unprecedented mastery over nature. Natural resources are no longer a limitation now that we control more and more forms of energy and can use raw materials in more and more ways’. Footnote 45 Europe used to be engaged in an order-building enterprise, subject to internal limits that could only be shifted as Europe’s norms were expanding. Now it finds itself exposed, vulnerable, and dependent.
For European leaders, this means that the EU should be understood as a ‘geopolitical Europe’. Footnote 46 At the conceptual level, it means that Europe is no longer to be understood as a full-fledged construction. It is now conceived of and experienced as a set of relations and interactions, which are dependent on natural, socio-technological and societal processes that are not institutionally moulded but factually given. There are intractable givens. Moreover, these processes are seen as disruptive and potentially destructive for political and social ordering. Ian Hacking has coined the notion of ‘indifferent kinds’ as opposed to ‘interactive kinds’ to refer to entities that are not aware of the classifications under which they are represented.Footnote 47 The notion may be transposed to the European context. It suggests that the ecosystems and social systems that are core to European society are fashioned by processes and actors that are largely indifferent to, or independent from, any kind of constructive task. This new consciousness affects all Western societies. It prompts various sorts of regressive reactions, from willingness to take back control to a desire re-establish boundaries and a unilateral meaning of reality. In Europe, it has prompted a reaction that consists in re-orientating the EU’s fundamental mission towards the maintenance of critical infrastructures and social functions.
In light of these challenges, the terminology has significantly changed in the EU. It is no longer about the building of a supranational political and socio-economic ‘order’. Instead, it focuses on reinforcing the resilience of a range of ‘ecosystems’, both in connection with institutional constructions (Internal Market, Schengen, monetary system, banking system) and socio-technological complexes (financial system, energy system, information systems, global supply chains), irrespective of whether they are European or national in character. Simply put: the EU is reinventing itself as an ‘infrastructural’ entity.Footnote 48 This practically means developing broad systems of rules and integrated legal frameworks in order to sustain these ecosystems.Footnote 49 But it also involves an interpretation of EU rules, free movement rules in particular, that gives further consideration to social stability and social integration.Footnote 50 This development relies on a concept of law that does not ‘require a continuous effort of creation’,Footnote 51 but a continuous effort to maintain existing national and transnational socio-technical infrastructures and social systems.
B. The immanent authority of law
It has been famously stated that the development of European integration has given rise to ‘a structured network of principles, rules, and mutually interdependent relations linking the EU and its Member States, and its Member States with each other’. Footnote 52 This conceptualisation is predicated on the assumption that European integration faces inherent contradictions relating to its authority and legitimacy. Since its inception, the problem has been to ensure the authority of a construction that is not supported by state’s means of enforcement and conventional markers of legitimacy. It has been challenging to build a new socio-economic order that purports to restructure domestic orders, yet largely depends on the resources and structures of its Member States. Law was designed as the means, providing both language and institutional practice, aimed at embedding and transmitting ideas about the ‘special type of relationship’ between European states and peoples.Footnote 53 It was entrusted with the task of fashioning the tenuous and inherently precarious integration process into a legitimate and authoritative one. This is what Floris de Witte calls ‘normative immanence’: the assumption that, through law, the normativity of integration ‘translates neatly into facticity’. Footnote 54
For this translation to work, two conditions are to be met. First, institutional agents and individuals should be disposed to accept that a course of action in accordance with EU law is reason to act, whilst a course of action in violation of EU law is reason to refrain from acting. One prerequisite is that EU law enjoys practical authority. This has been addressed through various techniques of empowerment and enforcement. A central technique has been to organise a sharing of powers whereby national Courts are empowered to act as ‘European judges’ for the safeguarding of the unity and effectiveness of EU law.Footnote 55 Another important technique has been to empower individuals by conferring them rights and assigning them roles that correspond to the furthering of EU institutional objectives.Footnote 56
The second condition is that EU law enjoys normative authority. Institutional agents and individuals should be disposed to give credence to EU law and its objectives. It is not enough that national authorities and individuals abide by EU rules; by doing so, they should also be willing to subject to norms which become the prevailing norms governing their social and economic life. To achieve this, EU law has traditionally relied on a structure of authority that is familiar to institutions and citizens across Europe: legalism and respect for law.Footnote 57 But it has also involved the actors of integration into institutional networks (the ‘European judiciary’) and legal regimes (‘Union citizenship’) that presuppose a commitment to Europe.Footnote 58 Thus institutions and individuals are led to think of themselves as embedded into a set of political, economic and social relations structured by EU law and forming a consistent whole. EU rules are turned into subjective dispositions and social practices. This is reflected in Advocate General Szpunar’s statement that individuals are ‘merely integrating into their everyday life the status of citizens of the Union conferred upon them by the Treaty’. Footnote 59 Such a statement implies a concept of normative immanence: EU law is subject, as such, to social embeddedness. It is assumed that it may be put into a direct relationship with institutional practices and individual lives.
Clearly, this concept does not hold any longer. There is indeed no doubt that European law meets with various forms of indifference, avoidance or resistance and that is has been so from the outset.Footnote 60 But this is not all: it turns out now that the structure of social reality does not adequately respond to the form of law. This mismatch between socio-economic developments and pre-existing legal arrangements was first made clear in the context of the financial and economic crisis.Footnote 61 The same kind of preoccupation then appeared in relation to the phenomena of migration, climate change, and the digital revolution.Footnote 62 Repeatedly over the last two decades, Europe has been confronted with practices and phenomena which seem to largely elude any form of effective governance by law. This has raised a widespread sense of normative inadequacy. This did not simply lead to the development of forms of ‘non-legality’.Footnote 63 Instead, it translated into a new form of legality.
This sense of normative inadequacy has prompted a set of institutional reactions. A pattern has developed which has consisted in ‘doubling down on the rules’ before formal rules were eventually supplemented and sometimes even supplanted by informal rules.Footnote 64 Over time, this has led to the development of new governance techniques. One of these is the development of provisions aimed at unpacking and assessing the vulnerabilities of the EU and Member States’ own systems of rules.Footnote 65 Another novelty is the proliferation of measures directly targeting the behaviours of public and private operators, establishing rules of conduct, for instance in the form of due-diligence duties and conditionality provisions.Footnote 66 These techniques respond to a perception of objective conditions in which EU rules shape social and technical processes that are unsuitable for a government by legal norms. They rely on a concept of rule, that internalises the social disembeddedness of legal normativity.
This concept of rule may also help explain two additional features of the current European moment. This is, firstly, a reliance on the distribution of financial resources, rather than rules, as the transmission belt through which the political objectives of integration can be made effective. Secondly, it explains the ambivalent stance towards regulation espoused by the EU institutions themselves. The recent move towards a ‘simpler Europe’ resulting in the withdrawal of legislative proposals and the deletion of specific requirements relating to environmental protection, equality, transparency or privacy is not just the result of a concern to foster competitiveness, in a context of geopolitical and trade instability.Footnote 67 It is also not just triggered by the protests of discrete social groups such as farmers. Instead, it reflects a deeper trouble about governability, especially about the question of how a society can be rendered governable in a context of normative inadequacy. This trouble is simultaneously displayed and concealed by deploying the concept of European society.
C. Difference transcended
In its Opinion 2/13, the Court of Justice stated that the EU’s legal structure is ‘based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it a set of common values on which the EU is funded, as stated in Article 2 TEU’. Footnote 68 Article 2 TEU comprises two parts. In the first part, it refers to the respect for liberal values in a democratic polity; in the second part, it builds upon the ‘social acquis’ of European states, linking these values to a liberal model of social formation.Footnote 69 It is taken for granted that these values constitute the normative background against which European integration has operated since its inception. Although they may conflict with each other and with other legitimate interests, and notwithstanding the fact that they may be subject to interpretation and balancing, it is essential that ‘the framework of the structure and objectives of the EU’ be preserved.Footnote 70 For the Court, the preservation of this basic framework is a condition for ensuring ‘the autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law’. Footnote 71
Autonomy refers to the notion that EU law is endowed with its own basis of validity (the EU Treaties as a ‘constitutional charter’), provided with its own sources of meaning (EU law concepts and interpretations) and action (internal policies and international agreements), and equipped with effective modes of enforcement. These are ‘the essential characteristics of the EU and its law’. Footnote 72 Such characteristics have been essential ever since the Court found, in Costa v ENEL, that there can be no questioning of the autonomy of EC/EU law ‘without being deprived of its characteristics as Community law and without the legal basis of the Community itself being called into question’. Footnote 73 In other words, the autonomy of the EU legal order is the formal mechanism through which the substantive basis of Europe is secured. It is thus not only about protecting the unity and integrity of EU law in adverse domestic and international contexts. Beyond this looms a broader concern: that of ensuring that Member States and their societies do not diverge from each other and do not fall apart internally; that of avoiding that intersubjective and intersocial relations between and within Member States degenerate into deep conflicts and fierce antagonism.Footnote 74 Autonomy serves the purpose of transcending the problem of internal difference.
This same purpose has informed the elaboration of the main building blocks of EU law. These include ‘Union institution’, considered not as a ‘common organ’ as in the contractual theory of international organisations, but as an organ enjoying autonomy of action;Footnote 75 ‘Union membership’, which suggests the existence of a collectivity which goes beyond a combination of its constituencies;Footnote 76 ‘Union citizenship’, seen as a form of empowerment of nationals who are granted a space of autonomous action and social integration beyond and across the territorial boundaries of the Member States;Footnote 77 and ‘Union law’ itself, conceived of as a set of concepts, principles and mechanisms that protect the institutional structure from the social dynamics of difference, be it ideological, social or cultural.Footnote 78
The emergence of the concept of European society may well coincide with the realisation that the problem of difference has not been overcome. Despite the historically unprecedented intensity of interdependence between the societies making up the Union, the decrease in mutual trust and harmony is tangible, both between and within European societies. Within Western societies, individuals and social groups are internally polarising, not just on the basis of differences of opinions and values, but regarding their approach to facts, reality and ways of picturing a common world.Footnote 79 This holds true in the EU. As a result, the ‘fundamental premiss’ of shared values is shaken. It has become clear that any form of overall normative agreement, including one that would be based on Article 2 TEU cannot be taken for granted. The extreme fragility of a shared understanding of reality in Europe has come to the fore in relation to deep social and political conflicts, which revolve around basic issues related to the reproduction of life (climate change, pandemics, reproductive rights issues, with corresponding entrenched social vulnerabilities), the integration of migrants and social outsiders (terrorists suspects, criminals, political activists), and the protection of minority groups (sexual, ethnic or religious groups).Footnote 80 European law is not immune to these existential conflicts. Many of the pathologies associated with the resurgence of conflicts are indeed attributed, at least partly, to European integration. On the other hand, the EU’s institutional machinery and legal system seem to be unfit to cope with conflicts and differences that are not simply reducible to a balancing between liberal values.
The main concern therefore is with what Europe and its law are like, when what European institutions have regarded as the sine qua non of their existence – the ‘fundamental premiss’ – is absent. To address the inevitability of difference, the EU relies on mechanisms of ordering and bordering.Footnote 81 It identifies and, at the same time, externalises the difference. This is reflected in the fact that it increasingly uses the language of ‘identity’. Institutions express their determination to defend the European value order, both in relation to the dividing ‘other’ inside Europe and, vis-à-vis, the threatening ‘other’ outside Europe. Within Europe, one of the major dividing factors has come from the rule of law backsliding. In this context, the EU institutions have engaged in an act of performative reflexivity whereby they describe themselves as guardians of the identity of the European Union. In two judgements of 16 February 2022 concerning the validity of the Conditionality Regulation 2020/2092, the Court of Justice undertook to endow the concept of EU’s identity with binding legal effects.Footnote 82 It confirmed that the effective protection of the Union’s financial interests presupposes respect for the rule of law. As a way to support this conclusion, it held that ‘the values contained in Article 2 TEU […] define the very identity of the European Union as a common legal order’. It then inferred what seemed to be the natural consequence of that statement: ‘the European Union must be able to defend those values’. According to the Court, there is a need to defend the EU’s founding values against illiberal practices of the Member States’ authorities. This suggests that there are institutional practices that develop outside the ‘common legal order’. Clearly, this ‘common legal order’ is to be distinguished from the traditional EU legal order based on an ‘original consensus’ subsuming all differences.Footnote 83 It is EU law as a device that identifies difference and, in turn, vindicates its identity.
The concept of ‘European society’ is expounded in a judgment rendered by the General Court on 27 July 2022. Russia Today France v Council was issued in the context of Russia’s military aggression in Ukraine.Footnote 84 In March 2022, the Council of the European Union had decided to suspend the activities of Russian state-controlled media on EU territory. This action was justified by ‘public interests which aim to protect European society’. Footnote 85 The Court considered that, although they entailed a restriction on freedom of expression, ‘the restrictive measures at issue, which were targeted at the media outlets controlled by the Russian Federation engaged in propaganda actions in support of the military invasion of Ukraine by the Russian Federation, were capable of protecting the Union’s public order and security and preserving the integrity of democratic debate within European society, peace and international security’. In other words, the Court found that ‘the foundations of democratic societies’ must be defended. The concept of European society is thus developed as an instrument of defence against an external threat that has a name (the ‘war’, ‘Russia’), and in the context of fragile and polarised societies, subject to a ‘continuous and concerted activity of disinformation and manipulation of the facts’. Footnote 86 These threats justify a restriction to freedom of expression, and could potentially justify – should the meaning of threat be extended – further rights restrictions in the future.Footnote 87 Such restrictions are the outcome of a model in which differences are recognised only as long as they are compatible with Article 2 TEU and the model of society envisaged herein. It follows that difference is reintroduced into EU law as a polarising reference with a view to saving the specific form of Europe’s sociability.Footnote 88
Two points are suggested by the foregoing analysis. In the first place, the concept of European society has emerged in a context in which European integration is facing critical challenges. These challenges affect the conceptual foundations of the project. The reference to European society is one way to acknowledge and confront this: the awareness of intractable and unpredictable givens that impose themselves on the European construct is addressed through a promise of stability; the trouble with the normative immanence of European law is addressed through a commitment to governability; the cracks in the normative foundations of Europe are addressed through an engagement to defend Europe’s model of sociability. European society is found to be made up of stability, governability and sociability. Secondly, these three notions form the basis for the development of a new legal idea of Europe. However, some elements of this idea had already been there, in particular in the field of external relations law. This is hardly surprising. In this area, the EU has always been confronted with challenges which are similar to the ones the EU is currently facing: the difficulty of coping with external realities and actors that are not under control, the challenges of governing processes that elude the empire of EU norms, the difficulty of engaging with perceived otherness. Not by chance tools like integrated legal frameworks, rules of conduct and reference to European identity were first developed in the field of external relations and are now extended and reframed in the law of European society.Footnote 89
3. The society of European law
The questions that follow, if we are to admit the conceptual transformation of Europe and its law, are the following: What kind of society is produced by virtue of this law? And how are we to apprehend and assess the social effects of this law? These questions have a threefold dimension. The first is ontological and concerns the elements that are considered to be the basic constituents of such a society. The second dimension is epistemological and concerns the ways in which this law approaches social realities. The third one is ethical in nature; it is implicated in the concept of society in so far as it is concerned with modes of existence and coexistence. It is a question often uttered on the ground and in the media, emerging from social groups in various ways, sometimes as an anxious call, sometimes as an angry cry: Is this the way we want to live in Europe now? Footnote 90
To start addressing these questions, I will rely on a series of cases drawn from the recent case law of the Court of Justice. The Court’s case law is one of the lenses through which to observe the development of the law of European society, alongside the legislative setting and the doctrinal movement of legal ideas. It is privileged here because it is a site where the institutional language and broad interests of the main political actors most clearly connect and collide with social forces and the broad conflictuality of the social field. The overview of the case law presented is incomplete, but hopefully, by exploring the cases selected through the breadth of items and arguments they contain, including arguments dismissed and paths not taken, we may hope to shed some light on the kind of society EU law is projecting. If anything, these cases convey the idea that this society has three primary elements. First, materiality: European society is a set of infrastructures, socio-technical systems and modes of governance that are co-integrated, for instance in the transport and energy sectors. The second element is relationality: European society is a framework for social interactions and relationships governed by systems of norms that assign a place and a meaning to each individual, most notably in the fields of Union citizenship, migration, and law enforcement. The third element is differentiation: European society correlates the process of differentiation of particular groups in society with a process of integration and assimilation into society as a whole. This is what we have when EU law is confronted with claims vindicated by LGBTIQ+ persons and religious groups.
In all three dimensions, the law of European society raises specific issues that can be termed, by reference to social theory, ‘social reproduction’, ‘psycho-social identification’, and ‘socio-political recognition’. In this context, the recourse to a conceptuality drawn from social theory is instrumental. It is a way to make practical social problems and constraints, which may be discerned in the interstices of the case law and through its variation, relevant to the actors responsible for the development of the law of European society. It is a way to bring the institutional construct of European society back to a proper relation of law to society.
A. Social reproduction
The energy and transport sectors are two sectors referred to as critical infrastructures by the EU.Footnote 91 Both are based on a model of green transition involving deep transformations in the modes of social relations and economic production, including the implicit but concomitant externalisation of socio-ecological costs outside Europe. The aim is to develop a new European industrial economy of sustainable growth and prosperity. This ideal has two major components. First, there is the idea that competitiveness and preservation of infrastructures, rather than degrowth or dismantling, determine the transition. Second, there is the notion that transition requires social fairnesss.Footnote 92 What the observation of EU law makes clear is that a European society that subscribes to such ideal will inevitably produce social conflicts. These conflicts are usually framed as distributive conflicts.
In some Member States like Poland, the cost of the green transition is perceived as significantly higher than in other Member States. Considering the specifics of the Polish energy system, the Minister of Climate and Environment decided, in March 2020, to extend the concession to operate the Turów coal mine located at the border between Poland, the Czech Republic and Germany.Footnote 93 The Czech Republic, supported by ecological organisations, challenged this decision and brought the case before the European Commission. The Commission issued a reasoned opinion on 17 December 2020 where it considered that the measure of extension adopted without carrying out an environmental impact assessment infringed the EIA Directive.Footnote 94 Following this opinion, the Czech Republic referred the matter to the Court of Justice. The judicial action included an application for interim measures, requesting the immediate cessation of lignite extraction activities in the mine.
In its recent case law, the Court has made clear that, in case of conflict about energy supply, the distributional analysis may result in specific arrangements granted to Member States like Poland.Footnote 95 This is because the preservation of critical resources and infrastructures is at stake. The Union is committed to ‘ensur[ing] energy security in the European Union as a whole and in all its Member States individually’. Footnote 96 However, this commitment must be balanced with the commitment to the green transition. In the particular case brought by the Czech Republic, the Court considered that it had not been demonstrated that the closure of the mine would threaten ‘energy security’ and ‘expose a large part of the territory of Poland to the risk of systemic failure’. It was confident that electricity network operators were able ‘to balance the electricity network in order to compensate’ for the unavailability resulting from the cessation of activities. In other words, the system was not at risk of breakdown. The provision of energy was secured.
But what about the situation of workers and local communities? Poland argued that the closure would entail the loss of thousands of jobs for the workers of the mine and employees of the subcontracting undertakings. Protests were organised by the residents of the Turów basin, joined by nationalist and far-right groups.Footnote 97 In its order, the Court rejected the argument. It replied that the socio-economic damage ‘is essentially pecuniary in nature and cannot […] be regarded as irreparable, since financial compensation is generally capable of restoring the position of the person suffering the damage to what it had been before the damage occurred’. This reasoning is fully in line with the model of ‘just’ or ‘fair transition’ promoted by the Commission. The social issue is addressed in terms of financial support in restructuring processes and enhancement of people’s skills. In the same vein, the Commission has recently approved, under the EU State aid rules, a Polish financial scheme to support workers affected by the closure of coal and lignite mines.Footnote 98 Such measures are meant to facilitate ‘social acceptance’ while contributing to the objectives of Union climate policy.
This course of action may well be a fair distributional response to widespread social concerns. However, it is inherently oblivious of concerns that are not reducible to resources and financial compensation.Footnote 99 In this respect, the Turów protest echoes the Yellow Vests uprising in France. These movements mobilise people who perceive themselves as being the most exposed to the impact of the green transition. Sociological studies have shown that their concerns are much wider than the question of work, and included the rise in energy price, fears of loss of the local living environment, fears of downgrading in terms of social and intra-family statuses, and deteriorated access to essential services, transport and housing conditions.Footnote 100 These are all social reproduction issues. In essence, social reproduction refers to the ways in which people reproduce their lives as biological beings, family members and individuals outside the workplace. Social reproduction theorists insist that our understanding of capitalist societies is ‘incomplete if we treat it as simply an economic system involving workers and owners, and fail to examine the ways in which wider social reproduction of the system – that is daily and generational reproductive labor that occurs in households, schools, hospitals, prisons, and so on – sustains the drive for accumulation’.Footnote 101 These issues are blurred by EU law, which tends to focus on infrastructures stability and tangible social value, i.e. support for workers in transition and for workers’ skills.Footnote 102
The road transport sector is another European critical infrastructure. It is governed by a political economy based on the requirement ‘to maintain the competitiveness of the EU economy’ while ensuring adequate working conditions for drivers.Footnote 103 This sector has long been deemed to be dysfunctional. It is based on a business model that generates work practices, which, in turn, render the system unsustainable. This model includes the establishment of subsidiaries in Eastern countries with low pay and social protection standards and cabotage rules, ie, rules limiting the transportation of goods within the same country by a transport operator from another country. The upshot is the exploitation of truck drivers (from Europe or outside Europe) ‘who would work and live on the road for months in deplorable conditions’. Footnote 104 Yet, the concern is not just exploitation. This sector is characterised by over-exploitation (stress, fatigue, depression) and alienation (deprivation of actual freedom of choice as regards working conditions) to the point of personal collapse.Footnote 105 To address this problem, the EU decided in 2020 to regulate the sector by imposing new rules of conduct on employers and drivers (resting periods, waiting periods, regular return of drivers and vehicles to the country of establishment), as well as new devices of control in the form of modern tachographs.Footnote 106 The introduction of these new rules through a set of legislative measures called the ‘EU Mobility Package’ met with strong resistance in Eastern and Baltic countries. As argued by Advocate General Pitruzzella in its opinion under the case, the Mobility Package ‘brings clearly into view the risk of a split between two visions of the European Union’. Footnote 107
The central argument put forward by the countries challenging the validity of the Package is of a distributional character. It is explicitly articulated in terms of discrimination between Member States, undertakings and drivers ‘situated on the periphery of the European Union’ and Member States, undertakings and drivers ‘situated at the centre of the European Union’, ie, ‘in the western part of the European Union’. Footnote 108 It is argued that the costs and losses associated with the obligations stemming from the Package are likely to be substantially greater for the former than for the latter.Footnote 109 This would be the result of entrenched asymmetries between these two parts of Europe. The response of the Court of Justice is classically holistic and institutional. With a view to confirming the validity of the Package, regard should be had to ‘the situation of all the Member States’. Footnote 110 The fact that certain Member States and undertakings will be significantly affected by the implementation of the Package is balanced against the social protection that it is supposed to ensure to all drivers. According to the Court, these effects are merely due to a choice of business model that involves providing services to recipients established in Member States distant from the Member State of establishment. What matters is that the Package is ‘applied equally to all Member States’ and that it is ‘consistent with the social ambitions of the European Union’. Footnote 111 The Court thus applied its classic jurisprudence of distribution.Footnote 112
This reasoning fails to consider the argument of geography. The Court regards the fact that economic operators and drivers suffer differently by virtue of their geographical location as inoperative. On the one hand, this difference is reduced to ‘different operating conditions’. On the other hand, the Court finds the argument not conclusive as long as there is ‘no inequality in law inherent in the contested provision’. Footnote 113 In this context, geography stands for economic and social inequalities. Yet, it is obscured in the framework of balancing of interests adopted by EU institutions. The Court contents itself with the fact that ‘the EU legislature sought […] to strike a new balance, taking into account, on the one hand, the interest of drivers in enjoying better working conditions and greater road safety and, on the other hand, the interest of employers in carrying on their transport activities under fair commercial conditions’. Footnote 114 As a result, factors related to the impact of these new regulations on living conditions beyond mere working conditions (eg, risks of job losses, low wage labour, increased fatigue and loneliness) are deemed purely ‘speculative’. Footnote 115 The Court’s reasoning demonstrates how the EU law framework downplays social reproduction issues.
The law of European society has grown in parallel with the narrative that Europe has shifted from a ‘space’ to a ‘place’ that ensures that the European society is resilient and ‘no one is left behind’.Footnote 116 However, as the two cases above have illustrated, its specific mode of reassurance is focused on distribution in a way that discards social reproduction issues. This is likely to generate forms of ‘social insecurity’ and a sense of loss, subject to political exploitation in today’s Europe.Footnote 117 Social and economic disenfranchisement is too easily turned into discourses that are prone to exploiting the ‘popular backlash’ against the green transition and scapegoat fragile groups in society.Footnote 118 The framing in terms of social reproduction avoids this polarisation. It brings together groups that are essential to the functioning of Europe’s economy and society, but whose living conditions and sense of loss are largely ignored, whether they are mine workers or rural communities opposed to mining activities.Footnote 119
B. Pyscho-social identification
Migration and law enforcement are areas which the EU considers to be parts of its ‘security ecosystem’.Footnote 120 This ecosystem, made up of norms, operational capacities and institutional bodies (such as EU Agency for Cybersecurity, Europol, Eurojust, Frontex), is based on two major components. One is the notion that European society is at risk of being destabilised by threats such as high-risk individuals, organised crime, corruption, domestic violence, child sexual abuse, and, according to this narrative, uncontrolled migration. This prompts the EU to equip itself with social risk analysis and vulnerability assessments.Footnote 121 The other component is the concern for a ‘society at peace’ that prevents the emergence of conflicts and avoids points of social tensions.Footnote 122 The EU is concerned with ‘the fostering of social cohesion at local, national and European level’. Footnote 123 However, a system that is so constructed is bound to generate issues of identification. I do not simply refer to mechanisms of identification, screening, profiling and surveillance that have developed in the migration and law enforcement areas.Footnote 124 I also refer to what has been found to be one of the prerequisites for the development of social relations in modern societies: the deeply ambivalent psycho-social process of identification with others that produces both attraction and repulsion.Footnote 125
The capacity for identification of Europeans has been tested in recent cases concerning migrants. Sea Watch concerns two NGOs’ vessels engaged in operations of assistance and rescue of migrants in the Mediterranean. The context is one of criminalisation of NGO members by Member States, in particular Italy. As a result, NGOs have endeavoured to insulate their operations as much as possible from intervention by States.Footnote 126 The paradox in this area is the fact that, despite extensive media coverage, the hardships suffered by migrants in the Mediterranean remain invisible, seem remote and appear ‘ungrievable’ to many Europeans.Footnote 127 Hypervisibility of an event involving distressed others coincides with a failure to identify with these. This conundrum triggers the question to what extent EU law is implicated in this failure.
During the Summer of 2020, Sea Watch 3 and Sea Watch 4, two ships flagged in Germany, disembarked persons in danger or distress rescued at sea in the Port of Palermo and Porto Empedocle. Subject to inspections by Italian authorities, the two ships were ordered to be detained on the grounds that they were not certified for the purposes of search and rescue activities at sea and had taken greater numbers of persons on board than they were supposed to. Sea Watch brought actions for the annulment of these measures before the Regional Administrative Court of Sicily, which decided to refer questions of interpretation of EU law to the Court of Justice. Directive 2009/16 on port State control, the EU law concerned, is a typical security directive adopted in the context of shipping casualties and pollution of the seas and coastlines of Member States. This directive is aimed at ensuring strict compliance with international conventions and EU legislation on maritime safety, maritime security, protection of the marine environment and on-board living and working conditions of ships. In its decision, the Court rules that the port State may subject NGOs’ ships to inspections if there are ‘serious indications capable of proving that there is a danger to health, safety, on-board working conditions or the environment’. Footnote 128 However, it does not have the power to demand proof that those ships hold certificates other than those issued by the flag State. By contrast, it may impose corrective measures relating to safety, pollution prevention and on-board living and working conditions, provided that those corrective measures are justified by the presence of deficiencies. Detention is allowed only if such deficiencies pose a clear threat to safety, health or the environment.
Was the Court ever concerned with the condition of the migrants in this case? Such concern surfaces in two points of the judgement. First, it lies in the reference to international law, in particular the Convention on the Law of the Sea and International Convention for the Safety of Life at Sea. According to the Court, the UNCLOS and SOLAS conventions establish the obligation to provide assistance to persons in danger or distress and prohibit the possibility of verifying the presence of rescued persons on board during security inspections. Second, mindful of the limited grasp of law in this field, the Court decided to add, obiter dictum, that the Member States are required to consult each other and to cooperate sincerely in the exercise of their respective powers of control: ‘those various requirements are all the more important given that, as EU law currently stands, there are no provisions specifically governing the systematic activities relating to the search for and rescue of persons in danger or distress at sea at issue in the main proceedings’. Footnote 129 These are requirements targeting Member States’ behaviour with a view to preserving the EU institutional ecosystem.
This SeaWatch judgement frames the situation of migrants in the Mediterranean as a problem of governability. What this framing completely overlooks are the condition of the migrants (origins, journey, affects, projects) and the practices of interaction and solidarity established between the rescuers and the persons rescued. This may be for strictly procedural reasons, such as the limited scope of EU law and the limited jurisdiction of the Court. Yet, the reasoning in this case is illustrative of a broader pattern whereby the migrant condition is seen through the lens of the state and its controlling powers. EU law appears oblivious to migrants’ experiences and practices of solidarity with them.
This is confirmed in a recent opinion of Advocate General Richard de la Tour concerning the criminalisation of the act of facilitating irregular migration.Footnote 130 O.B is a Congolese asylum-seeking woman accused of having attempted to bring her eight-year-old daughter and 13-year-old niece into Italy with false documents. The question posed to the Court is whether the obligation to criminalise any form of facilitating irregular entry even if carried out for non-profit purposes is compatible with EU fundamental rights. The Advocate General considers that, under Directive 2002/90 defining the facilitation of unauthorised entry, the act by which a mother contributes to the unauthorised entry of two minors, members of her family, constitutes an offence. In his view, ‘it is evident that facilitating illegal immigration constitutes a serious threat to the preservation of public order and border management’, independently of any circumstances. Criminalisation is justified on the basis of border management and control: ‘By bringing all acts contributing to the unauthorised entry of third-country nationals into the territory of a Member State within the scope of intervention of the public authorities and, in particular, within the scope of action of the criminal authorities, the EU legislature ensures not only better control of migratory flows, but also greater surveillance of those acts’. Footnote 131 As to the scope of criminalisation and possible exceptions to it, the Advocate General holds that ‘the definition of mitigating and aggravating circumstances and penalties reflects both social realities and legal traditions, which vary not only between Member States, but also over time’. Footnote 132 This reference to ‘social realities’ is most intriguing. It means that this area of law lies within the remit of Member States. But it is also evidence of the fact that EU law regularly sees social reality as the outcome of an institutional construct that exists by virtue of State law.
Moreover, in this Advocate General’s opinion, fundamental rights invoked by the referring Court are completely discarded.Footnote 133 The existential and emotional aspects of the case, much present in the preliminary reference, are obscured. Yet, forms of vulnerability, family and emotional ties, relationships of dependency, risks related to separation are categories that are not unknown to EU law. These categories feature in the Court’s case law on Union citizenship,Footnote 134 in which they trigger the process of identification to other social individuals. However, under EU law, such categories clearly do not apply to migrants. In the context of migration, EU law does not allow for the process of identification to unfold. Migrants are only protected as far as their basic needs are concerned,Footnote 135 and as long as they are actively integrating into the national fabric.Footnote 136 Their own specific forms of identification with Europe do not find home in EU law.Footnote 137 As a result, they are excluded from society as a framework for identifying with others’ image and self-identification.
The Court’s judgement departs from the Advocate General’s opinion. It holds that ‘the conduct of a person who brings into the territory of a Member State, in an unauthorised manner, minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, cannot fall within the scope of the general offence of facilitation of unauthorised entry (…), including where that person has himself or herself entered that territory in an unauthorised manner’.Footnote 138 Yet, remarkably, this is not on the basis of the protection of vulnerable migrants. The Court relies on respect for family life and the rights of the child. It is committed to protecting European values centered on family ties and child welfare. It does not recognise the lawfulness of acts of solidarity with migrants. This reflects a form of empathy for ourselves as Europeans forming an ‘ethical community’, not a form of identification with others.Footnote 139
Interestingly, the reference to ‘both social realities and legal traditions’ comes from a judgment of 30 April 2024, Procura della Repubblica presso il Tribunale di Bolzano, issued in the field of law enforcement and data retention.Footnote 140 Under EU law, individuals are protected against intrusions into private life through data surveillance.Footnote 141 This is not just because private autonomy is at stake. The protection is based on the fact that ‘access to such a set of data is liable to allow very precise conclusions to be drawn concerning the private life of the data subject, such as his or her everyday habits, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of that data subject and the places he or she frequents socially’. Footnote 142 The Court conceives data subjects as social individuals able to interact and participate in society. The subjection to data collection and retention, which individuals are not unable to see and understand and which is liable to reproduce and intensify social, gender or racial inequalities, ‘is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance’.Footnote 143 Such a feeling harmfully interferes with the process of socialisation.Footnote 144 It is established case law that, irrespective of the subsequent use made of traffic and location data, the retention of those data ‘constitutes, in itself, an interference with the fundamental rights to respect for private life and protection of personal data, enshrined in Articles 7 and 8 of the Charter, irrespective of whether the information in question relating to private life is sensitive or whether the persons concerned have been inconvenienced in any way on account of that interference’. Footnote 145
This case law has been met with strong resistance, in particular in the field of law enforcement and police use of data. In a recent case concerning access to traffic and location data collected by private service providers in order to identify the perpetrators of thefts of mobile phones, the Court first held its ground. It was adamant that ‘only the objectives of combating serious crime or preventing serious threats to public security are capable of justifying serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter’. Footnote 146 However, confronted with the main question of whether the crime of ‘aggravated theft’ enshrined in Italian law was to be regarded as ‘serious crime’ within the meaning of EU data protection law, the Court decided to refer to ‘both social realities and legal traditions, which vary not only between the Member States but also over time’. Footnote 147 Member States thus retain the prerogative of defining criminal offences. They are granted broad discretion in criminalising social behaviours. Notably, this clearly constitutes a deviation from the previous case law of the Court.Footnote 148 It results in blurring the line between social deviance and serious crime.Footnote 149 In essence, this decision encourages a form of evasion of reality paradoxically in the name of ‘social realities’. By presuming that social reality is enshrined in legal provisions and traditions, it draws social meaning exclusively from institutional knowledge and the ‘culture of control’ ingrained in law enforcement authorities.Footnote 150
The notion that European society must identify sources of vulnerability and protect itself against polarisation has resulted in the proliferation of procedures of inspection, systems of surveillance, and mechanisms of automated identification. This particularly applies to migrants and those perceived as social deviants. It follows from the foregoing that EU law regulates this development by relying on an approach and form of knowledge which underplay or even curtail the pyscho-social process of identification.
C. Socio-political recognition
In 2020, the President of the Commission concluded her State of the Union address with the following words: ‘I will not rest when it comes to building a Union of equality… Because being yourself is not your ideology. It’s your identity’. The EU is committed to a ‘politics of identities’ based on two premises. On the one hand, the different aspects of personal and embodied identity are recognised through a fight against discrimination on grounds such as sex, race, ethnic or social origin, language, religion, political opinion, disability, age or sexual orientation.Footnote 151 On the other hand, this recognition is deemed necessary to achieve the objective of promoting integration and equality of individuals in European society as a whole. The EU assumes the existence of a shared understanding of reality in line with EU values. On this view, difference is recognised within a legal framework and political ideal referred to as the ‘identity of the European Union’. The combination of these premises raises a larger issue: How to accommodate the recognition of social, sexual, racial, cultural, and religious differences vindicated by particular social groups while, on the other hand, relying on a understanding of society based on individual autonomy and liberal values? That is to say, European society is currently facing a problem classically addressed by theories of recognition.Footnote 152
Claims for recognition addressed to the EU are of various sorts.Footnote 153 One typical kind of claim builds on EU law as a traditional form of individual empowerment. It relies on free movement as a precondition for enjoying an autonomous life. Mirin is a case in which identity assigned and identity embodied differ.Footnote 154 A person born in Romania was assigned a female gender at birth. After moving to the UK with his parents, he was allowed to change his first name and official title from female to male. He then obtained a gender identity certificate, a UK document confirming his male gender identity. On this basis, he requested that his city of birth record the change of his first name and gender identification in his birth certificate. However, the request was denied in Romania. The Court ruled in favour of the recognition of the name and gender identity acquired abroad. Relying on the precedent established in Coman and Pancharevo, it considered that the denial of recognition amounted to a restriction to the freedom of movement under Article 21 TFEU.Footnote 155 Moreover, Romania’s measure was in breach of Article 8 ECHR which ‘protects a person’s sexual identity as a constituent element and one of the most intimate aspects of his or her private life’. Footnote 156
Interestingly, this solution is directly inspired by the case law of the Court in the field of recognition of surnames.Footnote 157 The premise is that the non-recognition or misrecognition of a civil status acquired in another Member States is likely to generate a divergence in identity titles that could represent a ‘serious inconvenience’ for individuals concerned in everyday dealings.Footnote 158 The aim is to protect the stability and continuity of individual lives that unfold in a transnational context. Yet, this should not be interpreted as affirmation of pure individualism: the protection cannot be triggered by ‘a purely personal choice’ to change name and status.Footnote 159 It is subject to the condition that the individual concerned is willing to develop a ‘genuine link’ to the host society and conform to its value system.Footnote 160 As such, it is a particular form of individualism.Footnote 161 When transposed to cases of gender identity, this means that recognition is made subject to the choice of a transnational form of life as well as adopting a ‘normal family life’. Footnote 162 Thus standards of a communal life are reintroduced into an individualist framework of recognition. EU law derives recognition as much from an individual’s understanding of personal autonomy as from an institutional understanding of what a ‘normal’ social life should be like.
There is a risk, however, to conflate these two perspectives. The Commission’s infringement action against a Hungarian law that restricts children and young adults from accessing or being exposed to content that relates to LGBTIQ+ symbols or practices might be a good illustration of this.Footnote 163 At issue is the protection of particular forms of self-identification against state interference. In this case, there is no doubt that the legislation at issue was in breach of the standards of tolerance and pluralism in a democratic society. In its action, the Commission has thus decided to partly rely on Article 2 TEU as a distinct ground of infringement. It considers that it was European society as a whole and as a community of values that is affected and therefore has to be defended.Footnote 164 On this view, LGBTIQ+ persons are representing as forming a coherent group embodying EU values and identity. Such framing is problematic, as it occludes these persons’ own understanding of everyday life and internal differentiations within this group. It blurs the difference between identity as lived and embodied on the one hand, and identity as institutionally assigned on the other hand. The recognition applies to the latter rather than the former.
One extreme case of blurring happens when the two identities are merely juxtaposed. This is what currently seems to happen in the developing case law concerning gender-based asylum claims.Footnote 165 The issue raised in these cases is whether women and girls from Iraq and Afghanistan who embrace a ‘Western-inspired lifestyle’ qualify as ‘protected social group’ within the meaning of the EU refugee qualification Directive. The Court accepts this claim. However, it makes clear that the claim should be reformulated as meaning that ‘those women genuinely come to identify with the fundamental value of equality between women and men and wish to continue to benefit from that equality in their daily lives’. Footnote 166 Hence, in the Court’s view, it is not about a particular culture but about fundamental EU values. The Court reasons that a woman who genuinely identifies with gender equality, ‘in so far as it presupposes a desire to benefit from that equality in her daily life’, can be regarded as belonging to a group worthy of protection. In other words, identification with and internalisation of EU values are turned into a ‘legal standard’. This is a bold move, which certainly means progress and protection for these individual women. Yet, it means that EU values are turned into subjective dispositions – they are not just objective standards to assess institutional practices. Protection is granted to persons who can transgress ‘the social, moral or legal norms’ of the society of origin.Footnote 167 However, this form of recognition runs the risk of reification and alienation. The identification with EU values is considered part of a person’s identity, ‘capable of constituting a common background that cannot be changed’. Footnote 168 This induces, in practice, forms of self-identification that are entrenched and, arguably, excessively intrusive.Footnote 169 At this point, the recognition of difference results in European society recognising itself.
Such reasoning becomes particularly problematic when it comes to differences that are not easily subsumable under EU constitutional values. Religious difference, for instance, is addressed under Article 9 ECHR, reproduced in Article 10 of the Charter of Fundamental Rights of the European Union. These provisions indicate a balance to be struck between respect for religious freedom and protection of public order. In practice, this balancing act is based on two underlying assumptions: first, the notion that religious practice, including in its external manifestations, is a question of private preferences; second, the idea that European society is a secular society where religion is a passive attachment. However, such assumptions are challenged by claims for recognition expressed by certain religious groups present in European society, most prominently in the case of Muslims. Many Muslims in Europe are engaged in a process of re-affiliation to religion, which, in second and third-generation Muslims, is often associated with a desire to develop a communal life and a sense of social justice.Footnote 170 In this context, rituals and the wearing of religious symbols are both an expression of faith and a part of a process of identification and socialisation. The question, then, is whether religious affiliation is recognised as a legitimate difference under the law of European society, or whether it is rather articulated as a form of political ‘separatism’ from prevailing social norms.Footnote 171
The rulings concerning the ban on wearing the Islamic veil in the workplace are cases in point. The Court refuses, in principle, to consider that such bans constitute a direct discrimination within the meaning of Directive 2000/78 on equal treatment in employment and occupation.Footnote 172 Instead, they are treated as cases of indirect discrimination. As a result, restrictions may be justified where there is ‘a genuine need on the part of the employer’. Footnote 173 This need is defined by reference to the ‘legitimate wishes of customers or users’ and the employer’s freedom to pursue a ‘policy of neutrality’.Footnote 174 Moreover, a ban may be justified by ‘the objective to avoid social conflicts, particularly in view of the tensions which occurred in the past in relation to religious beliefs’. Footnote 175 Insofar as it manifests itself in society, religious practice is considered a factor of trouble and disorder. This approach forecloses the recognition of the multiple identifications at play in this case. First, it denies the existence of religious subgroups in society. Muslim women are included into the broad group of workers on the grounds that separating religious belief from the more general manifestation of beliefs would provoke a ‘segmented approach’ and have ‘the result of creating subgroups of workers’.Footnote 176 As analysed by Xenidis, there is a ‘universalistic undertone’ in the Court’s reasoning.Footnote 177 Second, it fails to take proper account of the intersecting axes of discrimination by considering that ‘religious discrimination is disconnected from gender discrimination’.Footnote 178 Third, by stating that ban is only ‘capable of causing particular inconvenience for such workers’, it obscures the fact that religion and faith are inner, active and reflexive aspects of these women’s lives.Footnote 179
This is in sharp contrast with the recognition of LGBTIQ+ persons and asylum-seeking women and girls who identify with EU values. The EU law framework for recognition is therefore dichotomous: some social subgroups are recognised, others are not, depending on whether they are composed of individuals seen as capable of personal autonomy and amenable to embody or internalise EU values. This is because the work of recognition is carried out from an institutional perspective and not from ‘the perspective of the lived reality of embodied social relations’. Footnote 180 The question therefore is how to integrate this perspective into EU law.
4. European society as method
In the different fields roamed over so far, problems are raised that are not the mere transposition of social conflicts. Rather they arise out of the reconfiguration of Europe and its law. This reconfiguration involves a series of shifts that combine material and ideological elements: the restructuring of relations of production around a model of sustainable growth; the fashioning of social relations within the framework of a security ecosystem; an approach to social differentiation based on a politics of identity. Thus framed, Europe and its law are liable to generate specific problems that can be captured by the categories of social reproduction, psycho-social identification and socio-political recognition. As such, these problems involve not just abstract institutional entities but concrete individuals and potentially intersecting social groups such as miners, drivers, migrants, trans-gender persons, and Muslim women. Beyond the relations of domination and exploitation in which they may be entrenched, their relation to Europe is prevailingly one of alienation. The EU’s way of regulating a complex set of techno-social systems through systems of rules creates forms of obfuscation of individuals and social groups’ conditions of existence, whether it is living conditions beyond work, migrants’ journeys to Europe, or forms of queer and religious life.Footnote 181 This generates a sense of social insecurity that certain political forces are prone to exploit, including with the intention of pitting the working class and minority groups against each other.
The source of alienation is to be found in a distinctive pattern that has emerged from the analysis. It is attributable to a reduction of social practices and conditions of existence to institutional practices and knowledge. One case where this is made conspicuously apparent is the Court’s judgement on the ritual slaughter of animals intended for human consumption. In 2017, the Flemish government in Belgium decided to ban the ritual slaughter of animals without prior stunning, on the grounds of protecting animal welfare. However, under Jewish and Muslim rites, stunning the animal before slaughter is prohibited. In Centraal Israëlitisch Consistorie van België, Unie Moskeeën Antwerpen and Others, the Court sided with the Flemish government.Footnote 182 It held that ‘the requirements of Article 13 TFEU’, which lays down the principle of incorporating the welfare of animals as sentient beings into all the Union’s policies, prevails over ‘Jewish and Islamic religious precepts’. Three key arguments were put forward: firstly, animal welfare is recognised as EU value ‘to which contemporary democratic societies have attached increasing importance for a number of years’. Second, account should be taken of ‘national perceptions’ and the ‘social context specific to each Member State’, some of which support greater protection of animals. Third, the Court draws on the ‘scientific consensus’ that prior stunning is the best way to reduce the suffering of animals at the time of killing. Union values, state knowledge based on majoritarian social perception, and modern science: these three elements form the normative basis of the judgement. In practice, this approach obscures the categories through which religious people apprehend their rituals. In light of the foregoing, it should be clear that these normative elements are to be understood as epistemological grounds. They are the main categories through which social practices are approached under EU law.
The difficulties with Europe and its law ultimately boil down to one conceptual challenge: incorporating into the law of European society an ontology and epistemology that do not only account for the material fact of belonging together within a framework of socio-technical and normative systems, but also do justice to the experiential and existential dimensions of diverse social groups in Europe. The integration of their lived experiences, defined as a set of social practices and categories through which they represent their own conditions of existence, is crucial to establish a proper account of European society. To achieve this, a refined articulation of materialist and existentialist approaches to European law is needed. In this regard, Iris Marion Young’s idea of thinking the ‘lived body’ and ‘social structure’ together provides a valuable source of inspiration.Footnote 183 Young argues that the situation of women should be investigated by articulating the concept of lived body, which refers to ‘a physical body acting and experiencing in a specific sociocultural context’, with a concept of social structure, which denotes ‘the confluence of institutional rules and interactive routines, mobilization of resources, and physical structures, which constitute the historical givens in relation to which individuals act, and which are relatively stable over time’. This type of articulation is what we need to elaborate a thicker concept of European society that may then be used to critically assess the development of Europe and its law. Arguably, the transposition of this analysis to the specific context of European society requires a combination of ‘new materialisms’Footnote 184 with new forms of existentialism.Footnote 185 With the first set of theories, we should be able to make sense of the co-integration of material contexts, social-technical systems and political ideologies; with the second, we may attempt to decipher people’s affective, embodied, imaginary and conceptual engagements with the world and on earth. Moreover, in Europe, both sides are defined by an insecure sense of social reality: on the one hand, the complex materiality of Europe makes it ever more difficult to get a simple grip on social reality; on the other hand, more and more people in Europe experience a feeling of loss and ‘placelessness’. Footnote 186 It is only an acute description of these combined elements based on the knowledge produced by social sciences and social theory that we can hope to really cope with the problems of European society.
Finally, there remains the challenge to turn these theoretical tools into concrete legal tools and techniques.Footnote 187 It is certainly the case that EU traditional techniques revolving around a balancing of interests against the background of broad EU objectives and values, reliance on institutional structures of knowledge production, and holistic forms of reasoning privileging institutional stability are not the right way to account for the problems European society is facing. On the contrary, they have proven to make EU law insensitive to social issues inherent to the material reproduction of European society, and ultimately unaware of diverse forms of intelligibility about social existence developed by various social groups. EU law seems to operate under the constant fear of social division and disorder. With a view to ensuring social peace, it is led to adopt a ‘view from nowhere’, ie, a view that discards the specifics of individuals’ and groups’ position in society.Footnote 188 Now, it is clear that the different kinds of alienation that structure European society and emerge from its law are identified in terms of groups, whether they are based on class, race, sex, gender, the disabled, the elderly, etc. Despite its commitment to fight against discrimination, European law is at pains to account for group differentiation.Footnote 189
European law has developed a reductionist way of bringing the diverse social groups coexisting in Europe together, one that reduces ‘the basic terms of social life’ to institutional forms of distribution, cooperation and recognition.Footnote 190 The primary task would be to broaden its knowledge about European society. To this effect, it may rely to a certain extent on its own ‘hidden’ resources, provided these are properly identified and thematised. Thus, the notion that the conditions of geographical and social isolation of workers from their usual environment must be taken into account to address social reproduction issues is present in the Court’s case law about posting workers as well as removed and nomad workers.Footnote 191 For instance, the notion that ‘individual circumstances’, including emotional forms of affiliation within social groups, relationships of dependency between members of the group, and forms of solidarity with other groups, must be taken into account has been developed in the Court’s jurisprudence.Footnote 192 This may help address identification issues. It is also established that, in its past case law involving recognition issues, the Court had no difficulty to consider discrimination arising from different grounds, thereby opening the way to analyzing recognition issues through the lens of intersectionality.Footnote 193 European law already contains some conceptual and normative resources to resist its own tendency to reduce social reality. However, in order to account for social life in Europe on its own terms, it should be open to integrate into its technical and conceptual apparatus additional resources and critical knowledge drawn from social sciences and social theory.Footnote 194
I briefly alluded earlier to a question I called ethical: Is this the way we want to live now? I suppose that I was led to this broad question as a way to avoid the vexing underlying question of the theoretical and technical means required to redress the course of the law of European society. This question cannot be eluded any more. Yet, in the endeavour to explore these means, the ethical concern may be retained as a methodological compass, as a way to orient ourselves when inquiring about the law of European society. This concern takes us away from approaches which take the position that we already have the conceptual repertoire for defining the normative basis of Europe and its law: it is to be found in Article 2 TEU and the task is then to develop a European constitutional theory to ensure that institutions, individuals and social groups operate under the standards enshrined in that provision.Footnote 195 But it also departs from approaches which endeavour to re-imagine Europe and suggest that this re-imagining is revealed through a radical questioning of European law or even a complete retreat from it. This re-imagination exercise has the potential to reopen European society to a new consideration and self-understanding.Footnote 196 However, it also takes us far from the historically specific conditions, structures and everyday life of European societies.Footnote 197 Instead, our approach accepts to immerse itself into the legal materials fashioning these conditions, and it assumes to carry out a work of description.Footnote 198 But, rather than relying blindly on the categories and standards of European law, it proposes to confront them with categories imported from social theory in order to uncover the material and ideological contradictions upon which the law of European society is based.Footnote 199 It thus aims at foregrounding the lived experiences that this law tends to overlook despite its own commitment to provide stability, security, and social cohesion. The hope is not to reconnect to an objective reality – this would be pure fantasy –, but to secure ‘existential territories’ for individuals and social groups in Europe.Footnote 200
It is certainly true that, by relying on a conceptualisation based on society and social theory, this approach remains committed to an idea of social formation that maintains an epistemic privilege to the whole over the parts. It assumes that what we need most at the current stage of fragmentation and polarisation of European society is a view from the whole. It accepts to work in the direction of a more reflexive integration of material and existential interdependencies that bind parts of European society together.Footnote 201 However, I hope it also makes clear that this does not mean that the parts should be forced to integrate into a pre-existing institutional whole. Such an approach requires a critical reflection about the possibilities of accommodating social, sexual, cultural, and religious differences. Yet, in the end, this is about legal recognition and, as such, there is no doubt that it involves a certain dose of institutional domination. For this reason, an approach based on European society may well call for an extra effort that consists in considering the materials addressed in this piece from the other end, from the other side of European society, whether it is called ‘post-colonial’ or otherwise, and which conceives Europe’s social space as a site of systemic inequalities and entrenched systems of oppression.Footnote 202 Thus, starting with an exploration of the theme of European society, we are left with two approaches, both of which may be necessary even if they are opposed. One is the approach developed in this piece. It assumes the possibility of ‘disalienated law’ in Europe in the midst of the existential fractures left by institutional modes of thinking and acting, and it considers that making this assumption is the only way to attend the internal normativity of lived experiences with law and make them sustainable and coexisting. The other or counter-approach would argue, to the contrary, that it is not enough to expose the contradictions and wrongdoing of European law; there is a necessity to question Europe and its law as a whole and as such, insofar as they are committed to the perpetuation of systemic forms of domination, exploitation and destruction. In Europe, we now see these two approaches taking form. They are separated and juxtaposed, but they reflect a plurality of demands that every European lawyer cannot fail to feel himself subjected to, unless she or he is prepared to abandon Europe as horizon for life and thinking.
Competing interest
The author has no conflicts of interest to declare.
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