This article discusses European copyright law as applied to the development and training of generative AI and natural language processing in public interest research institutions and libraries. The article focuses on the scope of the new exceptions from copyright law for text and data mining (TDM) for research purposes and discusses them from the perspective of research ethics and principles of open science in publicly financed research. The public interest mission of research institutions and libraries includes the open dissemination of research results but the exceptions from copyright are focused only on the training phase in AI development. Regulation on data transparency is fragmented. The article finds that while new exceptions open for developing language models under research institutions and libraries’ public interest mission to preserve national languages, the regulation is not adapted to principles of research ethics and open science, and legal uncertainty remains.

This introductory article outlines three fundamental regulatory developments in the EU’s legislation addressing digitalization and automation of decision-making: One is that across many acts we see a move towards more complex multi-level composite procedures, involving not only public structures with agencies, EU bodies, national agencies, but also co-regulation through standardisation in combination with – in several areas – audited self-regulation. A second feature of much of the current legislation in digital matters is that obligations imposed therein require an increased attention to information management – from sourcing to use, dissemination, sharing. This is a requirement for both public and private actors imposing ever more ‘granular’ knowledge and reporting of information flows in economic operators. A third is the growing role of interoperability which is being firmly established as a tool to create data exchange possibilities The diverse regulatory tools and methods are creating complex networks of legal relations and obligations which appear difficult to submit to oversight and compliance without strong protection of individual rights and procedural structures ensuring their enforcement.

Strategic litigation plays a crucial role in advancing human rights in the digital age, particularly in cases where data subjects, such as migrants and protection seekers, experience significant power imbalances. In this Article, we consider strategic litigation as part of broader legal mobilization efforts. Although some emerging studies have examined contestation against digital rights and migrant rights separately using legal mobilization frameworks, scholarship on legal mobilization concerning the use of automated systems on migrants and asylum seekers is scarce. This Article aims to address this gap by investigating the extent to which EU law empowers strategic litigants working at the intersection of technology and migration. Through an analysis of five specific cases of contestation and in-depth interviews, we explore how EU data protection law is leveraged to protect the digital rights of migrants and asylum seekers. This analysis takes a socio-legal perspective, analyzing the opportunities presented by EU data protection law and how civil society organizations (CSOs) utilize them in practice. Our findings reveal that the pre-litigation phase is particularly onerous for strategic litigants in this field, requiring a considerable investment of resources and time before even reaching the litigation stage. We illustrate this phase as akin to “climbing a wall,” characterized by numerous hurdles that CSOs face and the strategies they employ to overcome them.

Strategic litigation is a form of legal mobilization, where actors bring cases before judges not only to win in court, but also to pursue broader political, social or economic ends. Various actors can use the law strategically – big corporations, specialized non-governmental organizations or individual academics. The ends can range from resisting market regulation or a political advocacy campaign to simply “testing the law”. The results of strategic litigation maintain or change power relations in society, economy or politics.

This article provides an analytical framework for the Special Issue on Strategic Litigation in EU Law. This framework can be used to study strategic litigation mobilizing EU law. A contextual and normatively open definition of strategic litigation, recognizes that strategic litigation as a practice operates within specific social, institutional, and economic contexts while accommodating a spectrum of agendas from progressive to conservative. The framework encompasses three dimensions: the actors involved, the unique legal structures of EU law, and its effects—both in terms of strictly legal outcomes and of broader socio-political consequences. Ultimately, this framework aims to illuminate the dynamics of (dis)empowerment characterizing strategic litigation, paving the way for a comprehensive exploration of its implications within the EU legal landscape.

This Article explores, from a participatory perspective of an engaged legal scholar, the case of homeless EU citizens in the Netherlands and the mobilization of their rights. By marking them as so-called niet-rechthebbenden (“non-rightholders”), Dutch municipalities have systematically denied homeless EU citizens access to overnight shelters and general homelessness services on equal footing as Dutch citizens. This legal and practical deadlock—a classic case of non-compliance through “law in action”—has most probably led to a denial of rights to EU citizens entitled to shelter as permanent residents, (former) workers, or otherwise legally residing EU citizens. The contribution explores the context and motivations that led a broad coalition of actors—ranging from homelessness organizations, advocacy groups, a public interest litigation organization and legal experts—to join efforts and consider strategic litigation a credible avenue to protect the interests of the most vulnerable under EU law within a national and local context. The case demonstrates, however, how strategic litigation is not considered the most effective or preferred strategy when other avenues for legal mobilization open up.

The present contribution seeks to provide an empirical overview of how the amended internal review mechanism established under the EU Aarhus Regulation is currently being deployed by civil society organizations to mobilize EU climate change law. This Article argues that the 2021 reform of the Aarhus Regulation has broadened the legal opportunity structure available to environmental organizations, which can now challenge a much broader set of EU administrative acts. However, this contribution holds that the internal review mechanism is being used strategically by environmental NGOs with the intention to contest - even before the EU judiciary - not only EU administrative acts, but also broader policy arrangements, representing the legal infrastructure of the EU ecological transition. In this regard, the Aarhus internal review mechanism can now be considered a real scientific dispute settlement forum, where NGOs and EU institutions can confront each other and disagree on the way scientific evidence is taken into account in the EU policymaking. Finally, the new specific features of the internal review mechanism are truly empowering only those organizations owning the necessary legal and technical expertise, allowing such NGOs to act as credible scientific interlocutors of the EU institutions on behalf of the wider public.

This paper traces the legislative process of the EU Artificial Intelligence Act (AI Act) to provide an empirical and critical account of the choices made in its formation. It specifically focuses on the dynamics that led to increasing or lowering fundamental rights protection in the final text and their implications for fundamental rights. Adopting process-tracing methods, the paper sheds light on the institutional differences and agreements behind this landmark legislation. It then analyses the implications of political compromise for fundamental rights protection. The core message it aims to convey is to read the AI Act with its institutional setting and political context in mind. As this paper shows, the different policy aims and mandates of the three EU institutions, compounded by the unprecedented level of redrafting and the short time needed to reach a political agreement, influenced the formulation of the AI Act. Looking forward, the paper points to the role of implementation, enforcement and judicial interpretation in enhancing the protection of fundamental rights in the age of AI.

Democratic backsliding is becoming increasingly widespread, filtering into not just constitutional law but other areas of substantive Union law. This article explores this phenomenon by focusing on how domestic judicial reforms spread to the day-to-day operation of EU competition law. It references two fundamental principles of Union law – mutual trust and effective judicial protection – before focusing on the European Competition Network, which requires national competition authorities to cooperate when discharging their duties under Union law. Lastly, it discusses the systemic consequences this can have for the operation of EU competition law, the internal market, and EU law more broadly.

European cities struggle to regulate platform-mediated short-term rental services in response to local concerns over uncontrolled tourism and affordable housing. In their efforts to tame online platforms and local hosts, cities have consistently pointed to EU law as an obstacle to effective regulation and enforcement and called for solutions at EU level. To date, research has paid limited attention to the precise role of EU law in the regulatory responses to the growth of short-term renting. This article therefore offers an explanation of how EU internal market law structures the multi-level dynamics behind short-rental regulation. Methodologically, the article relies on a contextual analysis of the EU’s legal framework for (electronic) services and an in-depth, longitudinal case study of the City of Amsterdam’s efforts to regulate its Airbnb-driven short-term rental market (2013–2023). Comprehensive empirical evidence indicates that European e-commerce law can deter governments from enforcing platform cooperation in the upstream market and, instead, prompt them to shift the burden of regulation and compliance to the ‘actual’ service providers (the hosts) in the downstream market. These upstream/downstream dynamics also help to explain the successful adoption and normative content of the recent Short-Term Rental Regulation. With its focus on the power struggle between cities and platform actors in the EU internal market, the article also offers a unique, empirically grounded account of how EU law structures urban conflicts over housing and tourism in the context of platformisation and how platformisation might affect the dynamics of European market integration more generally.

How does ‘Europe’ cope with its dark past and how does it handle its internal conflicts and contradictions? This is the question at the heart of Christian Joerges’s 600-page opus magnum Conflict and Transformation – Essays on European Law and Policy where he advances his reconceptualization of EU law as a particular form of conflicts law as his answer. But the problem constellation the EU is faced with in today’s world is well-beyond what can be encapsulated by a conflicts law perspective. As an alternative the idea of transformative law is introduced and its potential for acting as a basis for the reconceptualization of the EU legal order discussed. Joerges’s oeuvre moreover has a blind angle, as it is internalistic in nature. But rather than internal forces driving the integration project forward the structural trigger and driver of European integration should rather be found in the reconfiguration of Europe’s relations with the wider world. From (de-)colonialisation to todays ‘fragmented globalisation’ it is the structural reconfigurations of Europe’s relationships to the rest of the world which is the central driver of the integration process.

Much existing social commentary and scholarship around the regulation of the European digital economy is focused on how societies could better regulate that economy and its associated harms. Such analyses often portray a problematically viewed order as ungoverned, or not effectively governed, by law. Instead, I argue for more (re)descriptive analyses on how our pre-existing legal structures powerfully create order in the European digital economy. I explain why we should explore the productive connections between pre-existing European legal arrangements and socio-technical order, and discuss what such exploration could entail. The article covers three complementary ways in which legal arrangements are productively connected to sociotechnical order: as tools of ordering to address problems and promote values; as tools that can also enable projects unintended and unforeseen by policymakers; and as constitutive of technologies and other forms of order. It provides concrete examples of these productive connections from various contemporary struggles within the governance of the European digital economy. I argue that focusing on the analysis of productive connections may shed light on how pre-existing legal arrangements are baked into and shaped by the European socio-technical order. As the current order of the European digital economy is characterised by massive inequalities, these analyses can also direct our attention to how our pre-existing legal arrangements can produce and reproduce inequalities and oppression. Analyses of pre-existing legal arrangements might produce different attributions of responsibility and possibilities of contestation than analyses of legal deficiency.

In following the interdisciplinary spirit of this symposium, I emphasise the usefulness of the sociological approach of interpretivism, together with qualitative methods, by examining how EU legal actors perceived the Eurozone crisis and how they enabled policy solutions: financial assistance and policy conditionality. This case constitutes a legal conundrum because of how these solutions encompass and connect different forms of law – EU law, international law and private financial law – and how EU lawyers seek to protect the EU legal order from this hybrid arrangement by drawing the arrangement as closely as they can to the EU legal order. This in turn creates issues of accountability as the imposition of policy conditionality engenders litigation by EU citizens who were directly affected therein, raising the question of whether establishing liability for damages is possible in such a hybrid arrangement. Using interviews with legal actors and observations of court proceedings, I foreground the multiple meanings of EU law and explain how such an approach can expand our understanding of not only what EU law means to its practitioners, but also how these meanings give insight into the potential paths of EU law’s development. To interrogate these multiple meanings, I examine the crisis policy solutions as well as a set of court cases – Ledra Advertising, Mallis and Chrysostomides – that sought to hold the EU accountable for losses suffered because of these policies. Using these methods can partially overcome the opaqueness of judicial proceedings at the EU level, as well as give insight into the development of the legal arrangements being contested in court. A novel methodological element is the descriptive analysis of observations of court proceedings in Chrysostomides, where I demonstrate how the interactions between the lawyers and the judges shed light on how legal actors establish legal validity as a collective project.

This article presents two related arguments. First, the limits of doctrinal analysis cut deeper than many EU lawyers realise. Most would probably accept that legal doctrine does not determine every legal dispute, but lawyers studying EU institutional balance often still assume that it can be deduced from the positive law what is good institutional practice. This paper argues instead that the allocation of EU institutional authority cannot be determined by the exercise of legal judgement, but instead requires the exercise of political judgement on the relative merits of different institutions. Second, this means that political and normative discourses and disciplines cannot be assumed to fall outside the domain of legal scholarship. What we need instead is a distinctive kind of legal scholarship that interweaves doctrinal analysis with normative political theory, broadly conceived. I will argue that political theory, in addition to evaluative value, has adjudicative value, provided that our theories are sensitive to the EU’s social and political setting and the constraints this setting imposes on what is realistically feasible.

European electricity regulation has evolved to include a novel category of binding sectoral rules known as terms, conditions, and methodologies (TCMs). These are created within a regulatory framework outlined in delegated Commission regulations by private electricity firms and approved by technocratic agencies, most notably the EU Agency for the Cooperation of Energy Regulators (ACER). Despite their technical nature, TCMs have significant economic impact. This prompts frequent appeals of ACER’s TCM decisions, questioning ACER’s role and the overall institutional equilibrium of the TCM procedure. ACER’s TCM decisions are subject to dual-level legal review – internal by ACER’s Board of Appeal and external by European Courts. This paper uses two case studies to examine how dual-level legal review impacts the institutional balance of the TCM procedure. We find that the two levels of review engage poorly, so that contrary to expectations, legal review creates uncertainty rather than clarity, allowing for considerable pragmatism. These findings show the importance of considering legal review when studying sectoral governance. Policy implications are also significant, as the identified issues inhibit innovation and problem-solving, the raison d’etre of the TCMs.