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Edited by
Daniel Naurin, University of Oslo,Urška Šadl, European University Institute, Florence,Jan Zglinski, London School of Economics and Political Science
Viewed as crucial to the process of European integration, domestic judicial dynamics drew the attention of empirical scholars early on. Participation in the preliminary ruling mechanism and the motivation of domestic judges to engage the Court of Justice, in particular, have formed a central theme of this scholarship. The accumulated research and data have helped unearth valuable insights about patterns of conflict and co-operation in the emerging multi-level legal order, casting a wider light on issues, litigation, and institutional determinations of legal integration. Some unmapped areas have remained, most notably regarding EU law use outside Article 267. While driving the empirical exploration of EU law, this body of scholarship has also suffered from theoretical and methodological limitations.
Edited by
Daniel Naurin, University of Oslo,Urška Šadl, European University Institute, Florence,Jan Zglinski, London School of Economics and Political Science
This chapter offers an overview of the varieties of data that are used in EU law scholarship alongside an overview of the associate research methods employed to analyse it. Based on a systematic literature review of 248 academic articles in the area of EU law and EU courts specifically, it addresses two questions: first, what data sources and methods are the most prevalent in EU law? Second, what are the advantages and pitfalls of different data sources and research methods and how can an understanding of these improve the study of EU law? Finally, the chapter seeks to stimulate a critical discussion of the extent to which emerging and non-traditional data sources both complement and challenge the traditional understandings of what counts as law. The chapter starts with an overview of the most commonly used source of data in EU legal research on courts – courts’ case law – before turning to other, less traditional sources of data in EU law such as interview and survey data, and data based on official statistics, newspapers, and courts’ websites.
Edited by
Daniel Naurin, University of Oslo,Urška Šadl, European University Institute, Florence,Jan Zglinski, London School of Economics and Political Science
Political scientists have discovered the European Court of Justice, but has it discovered law? We address this enduring question, first posed by Armstrong in 1998, by tracing the evolution of law in political science work on the CJEU, from a concept understood in rudimentary terms as an external constraint on judicial behaviour to more recent nuanced accounts of legal concepts, doctrine, and judicial practices. While political science has come closer to the nuts and bolts of CJEU decision-making, we argue that there is untapped potential in exploring the multidimensionality of legal cases and the micro-level details of legal interpretation and adjudication.
Edited by
Daniel Naurin, University of Oslo,Urška Šadl, European University Institute, Florence,Jan Zglinski, London School of Economics and Political Science
In recent years there has been a growing interest within the field of empirical legal studies in employing experimental methods to analyse the functioning of EU law and institutions. While this approach remains largely limited to social science topics – primarily examining the impact of EU law enforcement on public opinion – it holds significant potential for broader applications. This chapter aims to review these contributions and the methodological intricacies of experimental research in EU law, providing researchers with an understanding of its advantages and limitations. Through a systematic examination of contemporary experimental studies, it identifies emerging trends and research questions. The chapter further explores the various types of experiments available in this field – such as surveys, lab, and field experiments – evaluating their capacity to deepen our understanding of EU legal decision-making and policy-making processes. It also considers potential themes for future empirical investigation of EU law. By exploring these topics, this chapter contributes to the methodological advancement and empirical rigour of the multidisciplinary scholarship devoted to the empirical study of EU law. It offers valuable insights for scholars seeking to leverage experimental methodologies in their pursuit of evidence-based analyses of EU law and its policy impact. Ultimately, this comprehensive review serves as a foundational resource for scholars, policy-makers, and practitioners keen on advancing empirical research in the dynamic landscape of EU law.
Edited by
Daniel Naurin, University of Oslo,Urška Šadl, European University Institute, Florence,Jan Zglinski, London School of Economics and Political Science
EU legal scholarship has contributed to the construction of the EU legal order as we know it. The references to academic works in Advocate Generals’ opinions are a testament to the co-operation between academia and EU institutions. The focus of EU law scholars on the EU Court of Justice has driven a type of EU law scholarship which is chiefly doctrinal. Yet, under the influence of US legal scholarship, empirical methods have started colonising EU legal research. Empirical approaches have enriched EU doctrinal work and unveiled under-explored aspects of the EU’s functioning. Thus started the ‘competition’ between the doctrinal and the empirical within EU law scholarship. To solve the methodological impasse, co-operation between methods would seem the most sensible approach in view of higher epistemological gains. However, this chapter demonstrates that methodological synergy may not solve the challenge of identifying the most comprehensive and accurate research method to study EU law so easily. It does so by offering critical reflections on the epistemological limits of empirical doctrinal methods, and a novel perspective on the empirical underpinnings of EU legal doctrinal scholarship. Ultimately, the chapter invites EU law scholars to adopt methodological modesty, as the boundaries between methods may not be as clear-cut as one would think, especially in EU law research.
Edited by
Daniel Naurin, University of Oslo,Urška Šadl, European University Institute, Florence,Jan Zglinski, London School of Economics and Political Science
The growing popularity of empirical legal studies (ELS) in the EU has gone hand in hand with increasing resistance against the new movement. This raises the issue as to whether, and what precisely, empirical legal research adds to our understanding of EU law. The chapter argues that the contribution is three-fold. First, ELS allows us to investigate old questions about EU law which we have always been asking, but with different – often better suited – tools. Second, it adds important new questions to the research agenda that had previously escaped scholarly attention. Third, it extends the concept of EU law, making it richer and more inclusive. This intellectual acquis is its strength but also makes ELS susceptible to two lines of critique. Some may see it as going too far, methodologically and substantively, from existing legal scholarship and discourse, others as not going far enough.
Edited by
Daniel Naurin, University of Oslo,Urška Šadl, European University Institute, Florence,Jan Zglinski, London School of Economics and Political Science
How should scholars use the interviews they conducted for a research article or a book chapter? Is there a recommended style or format for presenting findings from qualitative research? Throughout the author’s ten years of interviews, these questions have seldom been raised. In every research process, there comes a point when authors turn to their data to begin writing about it, and yet this writing phase is rarely reflected upon in any meaningful way. This chapter offers some thoughts on the use of interviews in EU legal research. It first discusses expert interviews as a distinct category, particularly relevant to EU legal researchers. Expert interviews in EU legal scholarship typically address complex, embedded situations involving influential political and legal figures who are especially vulnerable to breaches of anonymity. These interviews are often part of research with significant policy relevance and implications beyond academia. The chapter then discusses how such expert interviews can be used. It provisionally explores three guiding principles: situatedness, transparency, and integrity for qualitative legal researchers writing both about and with interviews. It is fair to warn, however, that none of these principles offers quick fixes or guarantees of academic recognition or accolades.
Ecological restoration is increasingly recognized as essential for combating the biodiversity and climate crises. However, restoration activities can also produce or exacerbate social and environmental injustices. This article explores the extent to which the European Union’s 2024 Nature Restoration Regulation (NRR) enables ‘just ecological restoration’. Drawing on the three dimensions of environmental justice – distributive, recognitional, and procedural – we assess whether the NRR adequately includes justice considerations. Our analysis finds that while the Regulation includes several justice-relevant provisions, many are implicit and lack enforceable guarantees. Disparities in expected costs and benefits raise concerns over distribution, limited safeguards may exclude marginalized communities, and participation mechanisms vary across Member States. The potential of the NRR to foster fair and inclusive restoration depends largely on how Member States implement their national restoration plans and whether the European Commission provides clear guidance and support to ensure socially responsible action.
Energy dependence and rising pollution from the energy sector have compelled states to re-evaluate their energy policies and legal frameworks in favour of sustainable energy development. In this context, energy transition emerges as a strategy to achieve global climate goals while ensuring energy security. However, making the energy transition a “just transition” presents numerous challenges. These challenges are growing as innovation in the energy sector accelerates, with digitalisation presented as a tool to drive the energy transition and optimise current energy systems. This trend has been integrated into the EU’s policy objectives and regulated by the EU’s legal framework. However, this political decision has sparked ethical and legal debates about the digital transformation of the EU energy sector, particularly regarding energy justice. By analysing instruments in the EU’s policy and legal framework, this paper addresses the intersection of the twin transitions through the lens of energy justice. Therefore, this study assesses the EU policy and legal framework of twin transitions from an energy justice perspective. The geographical scope of this research covered the EU. The methodology includes doctrinal legal research. The conclusions of this research encompass an assessment of selected EU policy and legal instruments applicable to the twin transitions.
It was a turning point in the history of European integration and a unique moment for the first President of the European Commission, Walter Hallstein. On 16 June 1965 in the afternoon, Hallstein appeared before the European Parliament (EP) to express his strong support for the constitutional interpretation of European law launched by the European Court of Justice (ECJ) in the new Van Gend en Loos (1963) and Costa v ENEL (1964) judgments. Here the ECJ had controversially assumed the competence to define the relationship between European law and national constitutional orders. By doing so the ECJ sidestepped the respective constitutional clauses of the member states on how to receive international (and European) law. Primary legal norms from the founding treaties, when clear and unambiguous, would have direct effect inside the legal order of the member states as well as primacy vis-à-vis national legislation, whether precedent or antecedent. This was a remarkable breakthrough for a constitutional interpretation of European law.
Regulating emerging technologies involves balancing the mitigation of risks with the promotion of innovation; a balance frequently seen as a zero-sum “dilemma of control.” Regulatory sandboxes offer a practical way to address this dilemma by enabling controlled, evidence-based testing of new technologies. In this article, we examine the regulatory sandbox framework introduced by the EU Artificial Intelligence Act (AIA). We argue that the AIA’s multi-level governance structure represents a shift from traditional sandbox models by prioritising regulatory learning over technological disruption and expanding public interest considerations to include strategically aligned commercial innovations. Afterwards, we identify governance challenges across three sandbox phases – pre-testing, testing and post-testing – and propose structured solutions. Our analysis suggests that effective sandbox governance requires specific mechanisms: tailored entry criteria, precise pipeline placement guidance and multi-agency coordination in pre-testing; experimental realism and continuous risk classification updates during testing and clear graduation criteria with robust transition support in post-testing.
For as vivid the academic debate around issues of algorithmic bias, discrimination and unfairness has been in the context of EU law, little attention has been paid thus far to the way in which such instances have been dealt with by courts. This article examines from a non-discrimination law perspective how domestic courts of Member States as well as the European Court of Justice have approached cases of algorithmic bias in automated decision-making, by focusing on the judges’ engagement with discrimination-related considerations. For the purposes of my analysis, I propose a taxonomy of judgments dealing with cases of algorithmic bias and analyse a number of examples accordingly to showcase the distinct features of each category. In this regard, a first distinction is drawn between judgments relating to cases of ‘algorithmic discrimination’ and those concerning cases of ‘unfair algorithmic differentiation’. Depending on the extent to which courts take into account any risks of discrimination in the cases falling under the second category, I further distinguish between judgments of ‘discrimination reflection’, those of ‘discrimination awareness’, and those of ‘discrimination silence’. On the basis of this classification, I then attempt to shed more light on how non-discrimination and data protection law may interact with each other in practice in cases of algorithmic bias. Finally, the article concludes with some reflections on the prevailing tendency to address equality concerns through recourse to data protection rules.
The ‘Digital Economy and Society Index’ (DESI) Dashboard for the Digital Decade is a set of indicators created by the European Union in the early 2010s to monitor Member States’ progress in pursuing the EU’s Digital Agenda, as well as many of the goals of the UN’s 2030 Agenda for Sustainability. The figures provided by the Dashboard are perceived by academics, the media and the general public as objective neutral data on the progress of Member States towards digitalisation, and on the promotion of sustainable development. This short contribution unpacks the Dashboard, examining the variables it considers and the methodology it employs, and finds out a very different picture. The Dashboard mainly assesses how easily people can access products and services online. It thus promotes a pro-market digitalisation agenda that excludes any other possible alternative and has little to do (if any) with the idea of sustainability. As is often the case with quantitative measurements of social phenomena, behind its seemingly scientific numerical veil the Dashboard conveys a policy vision that is hardly compatible with the objectives the Dashboard allegedly promotes. The essay thus raises broader questions as to the legitimacy of governing through indicators and as to the role of EU in shaping Member States’ digital future.
In core government and for public tasks hugely sensitive for citizens such as migration governance in Europe, the use of AI systems developed and provided under contract gives migration authorities and private providers the power to keep their deployment secret and to refuse access to their key components. This article explores the complex interplay between public and private drivers of secrecy surrounding procured AI technologies in European migration governance, demonstrating how these forces converge and reinforce one another. It examines AI secrecy as an institutional framework shaped by both public and private law forms of secrecy, applying the spectrum of secrecy from deep (unknown unknowns) to shallow secrecy (known unknowns). Specifically, the paper looks into the sources of ‘political secrecy’ in migration and security authorities, highlighting how migration agencies and authorities keep the existence and use of AI systems from civil society and affected persons (such as third country nationals). Next, it analyses the legal frameworks that sustain AI vendors’ private secrecy, such as trade secrecy, secrecy in procurement procedures and agreements. In examining the various secrecy points, it scrutinises the limited impact of the AI Act in addressing the entrenched secrecy of AI deployment and development in governing migration. Finally, we condense the main takeaways and examine the broader repercussions of AI secrecy beyond the context of border control, touching upon its implications for a new equilibrium transcending the conventional public/private divide.
This formative period of EU law witnessed an intense struggle over the emergence of a constitutional practice. While the supranational institutions, including the European Commission, the European Court of Justice and the European Parliament, as well as EU law academics helped to develop and promote the constitutional practice, member state governments and judiciaries were generally reluctant to embrace it. The struggle resulted in an uneasy stalemate in which the constitutional practice was allowed to influence the doctrines, shape and functioning of the European legal order that now underpins the EU, but a majority of member state governments rejected European constitutionalism as the legitimating principle of the new EU formed on basis of the Treaty of Maastricht (1992). The struggle and eventual stalemate over the constitutional practice traced in this book accounts for the fragile and partial system of rule of law that exists in the EU today.
Who is recognised within the concept of ‘European Society’, and, more importantly, who or what remains unseen? This article critically examines European Society through a decolonial lens, arguing that EU law is detached from the lived and diverse realities of European Society. Drawing on the work of sociologist Manuela Boatcă, the authors propose a decolonial approach that excavates coloniality of power, knowledge and, especially, belonging within EU law to reimagine European Society. Analysing cases in migration and the rule of law, the article reveals how EU law perpetuates hierarchical structures of inclusion and exclusion, and invisibilises the liminal—often deploying “Western” norms, values, and lifestyles as gatekeeping tools, especially in post-colonial contexts. At the heart of this argument is the necessity to move beyond Eurocentric assumptions of universality, neutrality, and totality in legal scholarship, instead embracing plurality of perspective, creolisation, and reflexivity. The authors contend that European Society should not be treated as a rigid legal construct but rather as a dynamic and inclusive one that amplifies marginalised voices, acknowledges and accounts for the liminal, and critically examines the law’s inherent limitations. Ultimately, the article calls for a radical reimagining of European Society through its decolonisation—one that confronts historical injustices, disrupts entrenched power structures, and steers EU law toward a more just, equitable, accountable and reconstructive future.
Against a backdrop of rapidly expanding health artificial intelligence (AI) development, this paper examines how the European Union’s (EU) stringent digital regulations may incentivise the outsourcing of personal health data collection to low- and middle-income countries (LMICs), fuelling a new form of AI ethics dumping. Drawing on parallels with the historical offshoring of clinical trials, we argue that current EU instruments, such as the General Data Protection Regulation (GDPR), Artificial Intelligence Act (AI Act) and Medical Devices Regulation, impose robust internal safeguards but do not prevent the use of health data collected unethically beyond EU borders. This regulatory gap enables data colonialism, whereby commercial actors exploit weaker legal environments abroad without equitable benefit-sharing. Building on earlier EU responses to ethics dumping in clinical trials, we propose legal and policy pathways to prevent similar harms in the context of AI.
Ecological economics research on limits to growth has demonstrated that high-income countries are unlikely to succeed in ‘making growth green’ or, in other words, decoupling economic growth from ecological impacts fast enough to bring human activity back within planetary boundaries. At the European Union (EU) level, a paradigm shift is difficult because the EU’s socioeconomic system is growth dependent: the continuation of economic growth is required to avoid significant psychological, social and economic harms. This article argues that the EU founding treaties entrench this growth-dependent model by constraining the policy reforms proposed by ecological economists to reduce the EU economy’s reliance on growth. It therefore contends that treaty reform is necessary if the EU is to sustain human wellbeing without continued economic growth. Nevertheless, the article also finds in the treaties a limited degree of flexibility towards policies that would constitute first steps in the direction of growth independence.
In two fields that are currently of high political salience and strategic significance – the regulation of digital platforms, and the regulation of environmental and human rights impacts in global value chains – the EU has taken a strikingly similar regulatory approach. In the 2022 Digital Services Act and the 2024 Corporate Sustainability Due Diligence Directive, it has charged large companies with managing risks to various public values and concerns. In this contribution, we critique this shared regulatory approach. First, we argue that regulating dominant corporations via risk management obligations actually reinforces their power in three ways: it is inherently deferential to corporate power and profitability; it reinforces technocratic framings of policy problems which discourage political contestation of economic governance; and it allows corporations to evade responsibility by framing negative impacts of their activities as external problems against which they protect the public. Second, these problem framings shape the implementation as well as the content of regulations. Specifically, they direct compliance and enforcement efforts to procedure over substance; and create significant practical barriers to public and private enforcement. We conclude by discussing the implications of our analysis in the context of the EU’s current deregulatory agenda.
Defending a particular vision of the freedom of expression rooted in its history and culture, the European Union has, in recent years, significantly increased its interventions in internet law. However, it has often refrained from taking a clear stance on the issue of the global or regional reach of its legal framework. This situation indirectly fosters a form of digital imperialism and provokes tension with many digital stakeholders who have adopted an American perspective on freedom of expression. Such a situation could potentially have disastrous consequences for the future of the internet. This chapter explores the causes of this conflict and suggests possible directions for solutions, highlighting the need to redefine the protection of online freedom of expression.