The rise of digital capitalism was marked by significant changes in the processes of value generation and capture in the economy. However, its impact on competition has only been recently explored. Taking a Law and Political Economy perspective we analyse four central developments challenging the traditional competition law framework and raising important questions regarding the broader institutional environment for the protection of competition: the transition towards financialisation and the logic of futurity, in particular in the digital economy, which gives rise to new competitive strategies of undertakings, structured around the ‘shareholder value’ principle; the extraction of economic value through new types of labour, which fall outside traditional employment relationships and hence affect the scope of competition law in the digital economy; the emergence of digital value chains that rely on multi-sided platforms and the formation of digital ecosystems, which challenge the usual focus of competition law on markets; the generation and extraction of value in the digital economy through new types of commodities and natural and artificial scarcities, that shape new social relations of production in accordance with the logic of futurity and lead to the emergence of competitive bottlenecks. Based on this analysis, we emphasize the need for a comprehensive theory-building for competition law and regulation that engages with these new processes of value generation and capture. We highlight how the underlying theories of ‘value’ and the institutional set-up have led to inequality and reduced competition. Existing institutions could not respond to these changes, which led to the initiation of significant institutional reforms. The prevailing conception of competition law had to evolve in congruence with different regulatory alternatives (a ‘toolkit’ approach). The article concludes by analysing how the emerging competition and regulatory compass for the digital economy in the European Union (EU) contributes to this dialectic between value generation/capture and institutional choice.

This paper sets out a research agenda for EU legal geography. It identifies some central traits to the project of legal geography, a relatively new and increasingly populated interdisciplinary space that links legal studies with geography. While the EU and the project of integration appear to offer particularly rich soil for the legal geographer, very little attention has been paid to the ways in which the nature, structure and lived experience of the EU can be explained from a spatial and temporal perspective. For many reasons, as will be elaborated, this is a shame. Most crucially, perhaps, there is a growing realisation in EU studies in general that the authority and legitimacy of the EU depends, more and more, on how it is experienced by its citizens. Legal geography, with its spatial awareness and focus on the way in which space, time and law are co-constituted, offers a lens, language and conceptual framework to fill this void. While EU lawyers have occasionally and haphazardly ventured into the terrain of legal geography, much work is to be done. This could take the form of methodological, empirical, or conceptual work, and would offer a new dimension to existing accounts of European integration and to the central concepts in doctrinal and constitutional work in EU legal studies.

Capital, I argue in ‘The Code of Capital: How the Law Creates Wealth and Inequality’, is coded in law.1 Legal coding is a process that adapts and molds formal law over time, often without explicit ex ante sanctioning by a legislature or a court. Several characteristics of formal law make it susceptible to coding, including its inherent incompleteness, the strong endorsement for private autonomy, and decentralised access to a state’s consolidated means of coercion.2 Would a progressive European Code of Private Law (EPL-code), as proposed by Hesselink, alter any of this and what would it take to ensure that the principles enshrined in this code would in fact be realised? These are the questions I will address in this short essay.

This work aims to investigate the stance of the Italian Constitutional Court (ItCC) on ECHR and CFREU and their respective Courts, ECtHR and CJEU. The aim is to verify if the attitude of the ItCC could be described in terms of openness or closedness, understanding openness as an effort to practise loyal cooperation through procedural means and, substantively, as greater attention for the norms of supranational orders, and closedness as the setting aside of all forms of procedural ties with the supranational Courts and the voluntary dissociation from their outcome, with the purpose of prioritising domestic constitutional provisions. To conduct the analysis, the article refers to the theory of interlegality, questioning whether ItCC, operating ‘on the borders between several normative orders’, has a broader accountability to these different orders. The first part of the paper is devoted to some elements drawn from the case law indicating openness, such as the language use by the ItCC, the procedures, the legal reasoning, and the effects of judgements. Attention is given to the contextual reference to the recognition norms of both the Italian Constitution and European Union (EU) Treaties and to the increasing use of preliminary rulings to the CJEU. The second part of the paper discusses a substantive criterion created by the ItCC, the ‘greatest extension of guarantees’, demonstrating that it does not refer to the level of protection of individual rights, but to the balance of the entire constitutional system. Our conclusion is that the ItCC trends concerning supranational rights express a deferent and operational, but vigilant cooperation, retaining a margin to ensure the vitality of the domestic Constitution.

In the Law of Political Economy perspective, private property is the corner stone right. Constitutionally, it amounts to a right of decision-making as a matter of principle towards the object of property. It is a decentralisation of the State’s sovereignty. This feature entitles owners to set rules in connection with the use of their property to which users of their property must submit. This is the origin of the authority relationships within business firms. Within liberal constitutional orders, this strong enabling characteristic of property was originally designed for individuals only. But business corporations, subsequently introduced in the legal system, have found the way to have access to these same rights. Concentrating productive assets, they have in effect concentrated rights of decision-making as a matter if principle. And the global firms (or enterprises) using corporations to structure their activities now make use of their prerogatives in a global legal space in which the Law of Political Economy is unable to reconnect economic and political issues. One way out of this major issue raised by globalisation is to constitutionalise world private governments. Recent court cases addressing climate change demonstrate that this is a viable solution. 1

Martijn Hesselink proposes a ‘Progressive code of European Private Law’, which would seek to tame the ‘legal steroids’ that private law modules and savvy crafting by well-paid lawyers currently offer to to global capitalism. The present comment engages with one of the core characters of the proposed code, namely that it should ‘consist of fundamental principles (not detailed rules)’. Rather than taking up the impossible task of suggesting (or speculating) what the principles should be, the paper aims to further operationalise certain aspects of what they should – or should not – do. To this aim, the role of principles is assessed in relation to attempts to ‘code for the 99 per cent’. Hence, the paper revisits certain mechanisms of so-called weaker party protection or social law through Katharina Pistor’s coding analytics (priority, durability, universality, convertibility). Private law principles and their legacy are part of the resistance, or backlash, against social coding. The paper concludes that a code of principles that aims to be progressive in the sense Hesselink highlights should consider at least two requirements: first, principles should be expressly formulated in such a way that they do not stand in the way of progressive detailed rules; second, they need to broaden the private legal imagination. It is on this account that ‘any amount of regulatory private law could not achieve what a (constitutionalised) code of private law principles could accomplish’.

The article offers a brief account of the continental European (viz., German) and the US American approach to legal education and scholarship. It then explores in which respect legal academics active in these cultures are vulnerable to the lure of commodification, that is, incentives to produce legal expertise for clients. After concluding that these incentives may well be stronger in countries where legal academics consider themselves badly paid and where scholarly traditions are weak, the article explores how commodification can adversely affect the culture of ‘legal science’ as a whole and even work to the detriment of clients.

EU legal geography concerns itself with the mutually constitutive relationship between EU law and space (also, and increasingly so, time). This requires reconstructing and systematizing the widely used concepts which reveal the geographical basis of EU law (such as movement and circulation), but also developing a particular viewpoint, indeed a specific “ethos of investigation”, which equips us with the tools to challenge and transcend the dominant ways of doing EU law. In particular, it is argued that a geographic turn in European legal studies will foster the study of how law works “on the ground” and will allow challenging taken-for-granted ideas about the relationship between law and political order, while throwing new light on the very technical concepts with which we reconstruct, analyse and assess EU law.

This article argues that spatial exclusion is a central element of, and a precondition for, exclusion from fundamental rights. Keeping individuals who are seeking access to rights geographically separated from spaces ordered by the rule of law is a defining feature of the contemporary European legal order. The European legal space is surrounded by borderlands, which are not only humanitarian borderlands, but also legal borderlands. Unpacking the meaning of borderlands and frontier zones could, therefore, be greatly productive for future perspectives on legal geography.

Hesselink proposes a progressive code of European private law as a radical response to Pistor’s The Code of Capital, which exposes private law’s complicity in staggering wealth inequality and social injustice. In this contribution, I argue that the proposal for a progressive code is insufficiently radical, because it is not fully equipped to address root problems of socially unjust private law. I suggest that a fuller accounting of root problems is necessary as a precondition for a ‘radical’ response: a more fundamental rethinking of private law based in more inclusive theorising of its role in social injustice. I sketch some of the ways in which intersectional approaches can assist in a fuller accounting of root problems by elevating and highlighting how mutually constructing systems of privilege and oppression give rise to social injustices that shape people’s lives. Notably, accounting of private law’s complicity in social injustice should engage private law’s coding of capital as entangled with race and gender. I argue that intersectionality is needed to enable the sort of paradigm shift, progressive visions and radical responses Hesselink aspires.

This article rethinks the corporation and ‘the social contract with business’ for the post-pandemic era. It uses a double historical orientation centred on the turbulence of the 1930s in Europe and America to insist on the company’s relationship with government, and to explore transformations in the social contract now needed to socialise and ecologise global business. One part of this history looks forward, from Adolf Berle’s modern corporation to the neoliberal corporation and regulatory governance. The article criticises a transformation of regulatory priorities in this era, closely analysing the shift to procedural mandates and questioning the corporate law tactic of ‘enlightening’ companies. The second part looks backwards to industrial modernism and Walter Rathenau in Germany in the interwar era, and also earlier (the late 1890s), to salvage a different understanding of the company and social contract, built around more constructivist visions of law, government and social consciousness. This part of the article is insistent about the metaphysical aspects of law and about developing law’s equalising powers around corporate impactfulness and injustice. It promotes ‘thought’ about collectivism (John Keynes) and the legal and regulatory recalibration that is needed to confront certain amassing challenges of the present. The article makes institutional transformation about shifting onto a different historical axis, whereby we might re-learn collectivist ambitions around the company that co-evolves with law and government, live to the public interest. It proposes a new social contract with business and a new regulatory modus involving law’s ‘Creabimus’ and ‘regulating dangerously’ for situations of widely adverse corporate impactfulness.

The wish from 24 February 2022 onwards to help Ukraine defend against Russian aggression has led to the provision of unprecedented lethal European Union (EU) military assistance. As the ‘taboo’ of supplying lethal assistance into non-EU conflicts is swept aside, what is the role of international arms control law? The legal requirements of the EU Common Position on arms exports and the Arms Trade Treaty compel EU Member States to assess various short- and long-term risks associated with arms exports. But it is unclear how arms control norms are being taken into account by the EU Council in its rapidly evolving role as a peacemaker.

The standards that are being used to shape EU decision-making on Ukraine matter both for their precedent-setting as reflecting the trajectory of EU normative power, as well as on the long-term blowbacks of proliferation on illicit arms trafficking. While from the EU Council, there has been limited public articulation of these risks, greater consideration thereof would serve as a reminder of the reality of post-conflict arms proliferation, ie. illicit arms trafficking of weapons leached from the conflict, and their subsequent misuse by undesirable actors. Geostrategic precedent is being set, with implications that extend far beyond Ukraine, including to other conflicts where the EU is already intervening. The EU’s delivering of massive lethal military assistance alters also the reflexive perception of its institutions.

In February 2022, the European Commission published the ‘Proposal for a Directive on Sustainable Due Diligence’. This proposal appears a first tentative step to move the European Union (EU) away from a neoliberal conception of corporation. It replaces the wholesale trust in shareholders as the drivers of social progress with a greater reliance on public intervention that, via law, should expand the purposes pursued by corporations and set more sustainable rules for their action. This intended shift towards a more socially responsible, ‘collectivist’ understanding of corporation, I argue, should be seen as part of a broader change in perception of the desirable relationship between the market, government and law in the EU, forced by the many unfolding crises.

In this paper I develop the concept of ‘imaginaries of prosperity’ as an analytical category that should enable us to grasp deep changes in the conception of political economy that the EU is currently undergoing. I use the Commission’s attempt to transform one of the core institutions of the deeply entrenched imaginary of privatised prosperity – the neoliberal corporation – to identify shifts in our background understanding of the economy, politics, government, nature and law which are pointing to the emergence of a more collective imaginary of prosperity in the EU. However, even if Commission’s due diligence proposal represents a visible shift toward such a collective imaginary of prosperity, in the last part of the paper I will argue that a more serious engagement with the question of power and the role of profit is both necessary, and imaginable, if we are to change course from what has led us to the current polycrisis.

Martijn Hesselink proposes a new European charter of private law that would correct the deficiencies in private law identified by Katharina Pistor. While Hesselink aims to achieve radical reform by way of radical democracy, this article argues that radical democracy is unlikely to realise a radically progressive vision of private law. Citizens of wealthy, post-industrial democracies lack certainty about both the material consequences of reform and the demands of justice. Because their caution renders them averse to far-reaching, bundled reform packages, public discourse in post-industrial societies as we find them is more likely to produce incremental than radical substantive reform.

This contribution to the symposium on Legal Geography and EU Law reflects on Floris de Witte’s paper. It makes two points: one about the potential of thinking about place in (and for) EU law and a second about the idea that potentiality itself – a notion which alludes to what could be – could be thought of in spatial terms. The overarching suggestion is that these ways of thinking offer insights into the meaning of meaning in EU law.

The introductory article sets out the background and the content of the Symposium on ‘Law and the Production of Precarious Work in Europe’. The analysis builds on the premise that European (EU) law, together with international and national law, is constitutive of precarious forms of work and work relations in different national and local contexts. The Symposium takes issue with the specific legal frameworks and regimes that are related to structuring various forms of precarious and exploitable labour, by exploring how (EU) law orders the world of work through legal regimes and regulatory frameworks governing specific forms of labour mobility across borders, as well as by looking at the other components of the structures and institutional interactions underlying the broader political economy where precarious forms of work materialise.

This comment discusses on how legal change can originate from society and the private sphere. It argues that Hesselink’s perspective is too strongly oriented on public sphere and ignores the societal sphere including its transformative potential. The comment centres the concept of private law institutions and institutional change that is a core element in both Katharina Pistor’s diagnosis on coding of capital in law and Martijn Hesselink’s related proposal to reform private law institutions through a comprehensive principle-oriented code. The comment first introduces the idea of legal institutionalism in Pistor and Hesselink to then add to it an additional perspective from a new institutional theory that identifies the transformative potential within the social institutions themselves. It is then argued that the law, rather than being in need of radical change, needs to be radical in being responsive to the societal institutions. The contribution concludes by outlining on the basis of three examples – contract, tort and private international law – how societally responsive private law institutions can look like.

Europe’s aggravating housing crisis lies in the blind spots of law. While central in constructing housing both as a home and as an asset, law bears the task of mediating between housing’s multiple – social, economic, and cultural – dimensions. However, inner-legal fragmentation and a legal imaginary of property, the nation state, and its welfare system have depoliticized, deflected and rendered inaccessible the ‘housing question’. Turning to tenancy contract law in particular, this article argues that the ‘social’ orientation of this early example of a ‘materialised’ field of contract law is not only ill-suited to reflect the recent structural shifts in the housing market brought about through financialisation. Tenancy contract law has effectively taken a conservative drift by claiming to adequately administer the bilateral landlord–tenant relation while being insensitive to macro-level developments. Tenancy contract law reindividualises tenant responsibility in the eye of hardships whose roots lie outside the contractual sphere and thereby furthers, rather than curtails, neoliberal housing policies. As a reaction, the article proposes political economy as a conceptual vantage point from which to develop a ‘holistic housing law’. Such a perspective combines a concern for democratic and collective agency with careful attention to law’s tacit and technical role in shaping the flow of finance and the techniques of landlords’ governmentality. Part of this is a ‘transformative tenancy law’, to be reformulated to protect not against landlord bargaining power in the first place but against a hegemonic and expansive market rationality that structurally corrupts the social and material meaning of housing.

The article is a discussion of Floris de Witte’s ‘Here be Dragons: Legal Geography and EU Law’. It argues that this essay is a direct challenge to the traditional institutional thinking of European integration. This new approach suggests a turn to new empirical studies. But it also implies the elaboration of a new conceptual language for Europe. This language is still to come.

Since the 2018 revision of the Posting of Workers Directive, the debate on posting has once again been heated. The spark comes particularly from disputes concerning cross-border mobility of highly mobile workers employed in transnational logistics services (Dobersberger, FNV, Rapidsped, and to a different extent Gruber and Samidani and AFMB). In this set of case law, the Court of Justice of the EU had to consider whether or not, and to what extent, the workers in question should be considered posted workers. Thus, the case law came to revolve around the spatial and territorial attributes, and the cross-border nature of the work performed. By resorting to the analytical tools provided by legal geography, and in particular to the concept of ‘chronotopes of law’ elaborated by Mariana Valverde, the aim of this piece is to reflect upon assumptions and implications of the aforementioned rulings with a view of discussing both structural and contingent elements that possibly favour exploitation of posted work in the transnational logistics industry.