This introductory Article sets out the background and summarises the content of the Symposium on ‘The Court of Justice of the European Union (CJEU) as a Relational Actor’. Observing that the CJEU has been a key player in shaping European legal integration, the Symposium takes as its starting point that courts – and the CJEU is no exception in this regard – are unable to drive developments in isolation. For the Court to carry out its role as guarantor of the Treaties and guardian of the rule of law in the Union, it needs not to isolate itself but to interact with other European Union (EU) and national institutions. Relations, the Symposium argues, are not only unavoidable but also legitimate and even vital for the adequate execution of the judicial function. This introduction briefly explores six of the Court’s most important relationships: those with the other EU institutions; the courts of the Member States; the Member States themselves; the parties appearing before it; other international courts; and the general public. It then summarises the contributions and highlights how they complement each other in examining the CJEU as a relational actor.

Reflexive sociology can contribute to a more holistic understanding of the role of the Court of Justice of the European Union (CJEU/Court) as a relational actor. This article draws on the Bourdieusian concept of (legal) field as an analytical framework to trace the power relations between the Court and its interlocutors. The analysis develops around four distinct conceptualisations of the Court as a legal field, ranging from its institutional architecture to the three mainstream judicial routes for a case to reach its docket (preliminary reference procedure, action for annulment and infringement procedure). These showcase the varied interactions among the different actors that either shape the Court as an institution or engage with it in the course of its adjudicative function. According to field theory, these interactions take the form of power struggles between the actors comprising a legal field in order to take control of the determination of the law. The actors of a legal field enjoy different positions that formulate their objective relations, and which are contingent on their disposition and capital. Each of the conceptualisations of the Court as a legal field in this article points to distinct power struggles and relations among a similar set of actors. Consequently, using field theory can be a very useful tool to contextualise the role of the Court and to systematically study its judgments, modus operandi and position in the European legal field under a reflexive lens that accentuates the significance of social space and power relations, and pushes for socio-legal and empirical insights.

This Article draws on research into precedent and the European Court of Justice to argue that it is distinctive in almost never retreating from a standpoint it has taken, or overturning an earlier judgement, by contrast with other Supreme Courts where this is a more common occurrence. The Article then considers the implications of this finding for research into the relationship between the Court and other actors, such as Member States, litigants and institutions. It suggests that in considering how the Court may be influenced and constrained this research takes insufficient account of its apparently limited capacity to change doctrinal direction. Evidence of doctrinal path dependence needs to be a more central part of discussions of the Court as a relational actor.

In a crisis, ordinary rules must often give way to a more expedient approach. Such emergency competences tend to favour executive decision-making over legislative procedures. In a European Union (EU) shaken by successive crises, this situation risks leading to permanent competence creep. While considerable attention has been devoted to the impact of crisis on legal and political decision-making within the Union, the position of the Court of Justice (CJEU) – and its impact on the distribution of powers within the EU – has been less researched. This Article fills the gap by exploring how the Court reviews the exercise of power in times of crisis by executive actors at the Union and Member State levels. Using migration law as a case study, it qualitatively and quantitatively examines how the CJEU has responded to crisis both in its scrutiny of measures of containment, and through its adjudication of migration cases in general before and after the acute phase of the 2015 refugee crisis. The Article shows that the crisis has led the CJEU to take a more lenient approach towards the executive powers at both the Union and the Member State level. It argues that this effectively amounts to a withdrawal from the judicial control function and enables an expansion of executive power that is likely to have effects lasting beyond any given emergency.

The European Court of Justice (ECJ) is often viewed as a revered champion of opposition to autocratic reforms in the Member States. In the context of the rule of law crisis in Poland, however, its resolute support for judicial independence contrasts notably with the limited improvements for judges on the ground. As the present investigation suggests, this discrepancy can be explained by a mode of incremental adjustments at national level that has allowed Polish lawmakers to repeatedly neutralise the effects of the Court’s interventions. Resulting from this strategy are several instances of mutually responsive interaction between the Court of Justice and autocratic national lawmakers that have shaped developments in the rule of law crisis, both at national and supranational level. At national level, lawmakers have incrementally adjusted reforms to comply – at least superficially – with supranational judicial interventions, whereas the Court refined its interpretation of supranational safeguards of judicial independence in response to incremental adjustments in Polish law. Yet, more recently, this interaction of inadvertent mutual inspiration may have come to a halt. Rather than changing national law to superficially respond to supranational judicial interventions, Polish authorities may increasingly deny the Court’s authority to adjudicate in matters of judicial independence in the Member States altogether.

The preliminary reference procedure is today the ‘infringement procedure of the European citizen’. Although it was initially designed as a mechanism for judicial cooperation, the procedure soon became an instrument for supranational judicial review of national legislation. Such a discrepancy between the intended role of the preliminary reference procedure and its actual use in practice has important consequences that are yet to be fully explored in the literature. Indeed, how can the Court of Justice appropriately review national legislation through a procedure designed for interpreting EU law? Is the procedure governing the preliminary reference mechanism suitable to perform such a role? In this paper, we focus on one issue in particular: the way in which the Court of Justice gains information regarding the legal and factual background of the case. The Court has long recognised that appropriate knowledge of the factual and legal context of the referred case is a necessary prerequisite to performing its scrutiny and that, in accordance with the judicial cooperation model, such information is provided by the national judge. The Article critically examines the rules of procedures and the case law to show that the national judge certainly plays a key role, but other actors contribute to shaping the Court’s knowledge too. After an analysis of each actor’s role, the Article concludes that the procedure offers few guarantees as to the effective participation of individual parties to the advantage of other actors in the proceedings, increasing the risk of having partial or unbalanced information regarding the legal and factual background of the cases.

A wind of change is blowing through the European judicial landscape. During the past decade, the European Union (EU) judiciary has undergone its biggest institutional overhaul in generations, the rise of authoritarian populism in Central and Eastern Europe has prompted a Rule of Law crisis, several supreme and constitutional courts challenged the supremacy of EU law, while the Court of Justice re-articulated the scope of the duty to refer under Article 267 TFEU and, for the first time, found that domestic last-instance courts breaching it triggered state liability. This Article argues that these and similar developments, once looked at together, suggest that something fundamental has shifted in the EU’s judicial architecture. A new form of judicial federalism has emerged, which departs from the traditional way in which relations between EU and Member State courts used to be structured. Although this new federalism is multifaceted and is marked by both centripetal and centrifugal forces, its distinguishing feature is a stronger centralisation, which manifests itself in a considerably expanded federal judiciary, a greater emphasis on hierarchy, a more careful use of European judicial resources, as well as tighter supervision of national procedures and court structures.

This symposium analyses European Union (EU) law as a means for both perpetuating commodification processes and potentially mitigating their consequences. This issue framing essay traces the evolutionary trajectory of commodification as a conceptual framework in contemporary intellectual debates, zeroing in on the most prominent theoretical frameworks underpinning its usage. It then relates the evolution of these debates more concretely to the context of the EU as a major institutional forum for the concept’s actualisation. Lastly, it connects these narratives to current conversations on the law’s role in constituting capitalism and consolidating its attendant structural inequalities. In so doing, it also canvasses the contributions that make up this symposium, showing how each enhances the discussion of commodification in the EU context.

The aim of this contribution is to critically introduce and assess the Frankfurt School’s theory of late capitalism as it emerged in the 1970s, when a combined crisis of inflation and stagnation began to unravel the Keynesian orthodoxies of state-organised capitalism. In the process, Frankfurt theorists such as Jürgen Habermas and Claus Offe developed powerful critiques of commodification and juridification. The origins of their theory of late capitalism are first traced to the interwar debates on the Weimar Constitution – Germany’s first experiment in both constitutional and economic democracy. The rest of the Article takes a closer look at the Frankfurt School’s changing posture towards economic democracy in the 1970s. Accordingly, I first reiterate how the theory of late capitalism converged with that of the other major crisis theory of the time – the neo-conservative theory of ‘ungovernability’. In diagnosing the ‘governability crisis’ as a crisis of democracy, the Frankfurt School’s increasing pessimism about democracy’s economic reach becomes apparent. Secondly, by looking at the way the Frankfurt School perceived the emergence of the ‘neoliberal’ alternative in the early 1980s, I also argue that the theory of late capitalism had, and did, little to resist the de-democratisation of the economy through the rise of economic constitutionalism in the 1980s. As the welfare state was caught between the two logics of commodification and juridification, economic democracy was its unwitting victim.

This paper offers a critique of European Union (EU) consumer law’s role in commodification. Arguing that commodification is best understood as a normatively dependent concept, it contrasts two very different strands of commodification critique. While teleological critique refers to conceptions of the good life, authenticity, or the corruption of human essence, deontological critique relies on conceptions of right and wrong, justice, and human dignity. The paper argues for a specific, Kantian–Marxian version of the latter, proposing to understand commodification as a moral wrong when it leads to legal–political alienation. Such legal–political alienation occurs when someone becomes disconnected or feels dissociated from the political community and its political institutions because its laws treat that person as a mere means, not also an end. The only way to overcome such alienating commodification, the paper argues, is through a dialectic of individual and collective self-determination. On this normative basis, the paper, then, critiques core instances where EU consumer law wrongs its addressees through alienating commodification, including its acceptance of personal data as consideration, its encouragement of consumer resilience, and its privatisation of social justice through ethical consumerism.

Digital technology brought informational saturation to our lives. In cyberspace, private and business users need help to make valuable pieces of information stand out from the noise of excessive information. With search algorithms, recommender systems, and online advertising, digital platforms specialised in providing relief for this problem. Their technologies arrange digitalised information to make it intelligible and relevant for individuals. But the separation of information from noise did not only become a necessity to comfortably navigate the depths of the web, it also became a commodity. There is a demand for it, a supply, a price, and an exchange on markets which is enabled by private law. The examples of general search, recommender systems, and online advertising illustrate that. At the same time, their commodification can become problematic. This paper argues that in the European Union (EU), the separation of information from noise has become a contested commodity according to M. J. Radin’s framework. The Digital Services Act and the Digital Markets Act purposefully limit the influence of the market price mechanism on the design and allocation of the separation technology to protect legal goods like the democratic process, innovation, and privacy.

Intellectual property (IP) is the legal mechanism that transforms intangible instances into tradeable commodities. While creating the conditions for extraction of value and capital accumulation across all domains of economic and social life, IP law defines at the same time the boundaries of commodification by determining the scope of the public domain. Within this traditional framework, opponents of neo-liberal market expansionism have championed the role of IP doctrines and principles such as fair use, exceptions and limitations. However, new informational capitalism relies primarily on non-IP forms of appropriation and de facto control. To a large extent, commodification of intangibles and capital accumulation is no longer distressed by – and even benefits from – traditional public-domain-enhancing IP doctrines. This challenges traditional IP narratives and calls for a new foundation for a truly counter-hegemonic discourse in IP law.

The years following the financial crisis of 2008 have witnessed a revival of interest in both the Polanyian concept of ‘fictitious commodities’ and the Marxian concept of ‘fictitious capital’. The former, with its focus on the consequences of markets for the ‘fictitious commodities’ of land, labour, and money, appears as a plausible explanation for our present instability along environmental, social, and economic axes. The latter, with its focus on what sets financial capitalists apart from their industrial counterparts, sheds light on what really separates Wall Street from Main Street, and what it all means for the prospects of class struggle in the 21st century. Building on a decade and a half of discourse on the role of these phenomena in financialisation, this paper explores the kinds of limits the law can place on high finance’s most flagrant flights of fancy. Taking as case studies the post-crisis efforts by the European Union (EU) to intervene in two key financial markets – private equity and securitisation – it asks how far current regulatory frameworks go, and what more can be done to protect Europe from capitalism’s excesses.

The paper looks at contracts and contract law as a place of both commodification and resistance to commodification. Commodification and contract are connected through the lens of flexibilisation, seen in particular as one party’s unilateral prerogative to adapt the content of the contract’s performance. Flexibilisation in this sense works to entrench the market mechanism (qua responsiveness to price and demand dynamics) in situations where marketisation makes the realisation of long-term human needs rely on the short-term horizon of market operations. Two such contexts of marketisation in the context of European Private Law are considered as examples, namely transfer of enterprise and acquisition of a (household) customer portfolio in energy markets. The paper argues that ‘taking contractual equality seriously’ can contribute to decommodification – or at least throw some sand in the wheels of commodification.