This review essay forms a contribution to the Dialogue & Debate symposium on Christian Joerges’s volume Conflict and Transformation (Hart 2022). The specific angle of this article is an interdisciplinary one that conceives of Joerges’s work as a boundary-crossing exercise between law and the social sciences. Aspects highlighted are the inspiration that his work finds in responding to Europe’s vocation, or realising the latter’s normative potential; the law-in-context quality of the approach, which combines inside and outside perspectives on what the law is and does, how it motivates and what it means; and the two-pronged ambition to take the law seriously as a legitimating force and to question, at the same time, the power of economic ‘facts’ and arguments, which sometimes overrule what seems legitimate. Moreover, this article considers the relevance and implications of two intellectual influences on Joerges’s work, one a more formative one (Habermas) and one resonating with recent experiences of crisis (Polanyi), and it follows the journey of Joerges’s reconstructive approach within European studies: between integration theory, governance approaches, and rethinking democracy in postnational constellations. As Joerges himself concedes, the normative vision that this yielded for European law and politics was overtaken by actual developments in the context of the monetary union, and conflicts-law constitutionalism became more of a counterfactual appeal. This article outlines how the critical edge of this approach could be enhanced by taking perspectives from critical political economy on board, which would also facilitate countering economic arguments.

The European Legal order, created by the European Court of Justice [ECJ], is an astonishingly effective treaty enforcement system. Previous explanations of its ‘transnational’ or ‘constitutional’ development have focused on the politics of judicial networks, and the wider political and economic context of postwar European democracy. Judicial biography has been almost entirely overlooked, even in the case of Robert Lecourt, widely acknowledged as the leading judge in the Court’s revolutionary period. Unknown to research on the ECJ, however, Lecourt had already spearheaded the adoption of the famous Article 49-3 of France’s 1958 Constitution. This paper demonstrates that the constitutional doctrines of European law and Article 49-3 were in fact premised on a similar ideology, that the pursuit of ‘effectiveness’ may require unprecedented restrictions on the traditional law-making role of national parliaments. Those were the constitutional values of the judge that, more than any other, built the foundations of the European legal order.

The article analyses the book Economic Constitutionalism in a Turbulent World edited by Skordas, Halmai and Mardikian, criticising the assumptions of societal constitutionalism and ordoliberalism on which it is based. The book concurs with the view that the current crisis of global legal institutions cannot be tackled going back to Nation States. Such an assumption seems to be inspired by societal constitutionalism à la Teubner. In contrast to traditional constitutionalism, which hinges on the dichotomy between constituent and constituted power, societal constitutionalism assigns a central role to independent institutions, whose main function is to avoid any hegemony of one social sub-system over another, in particular of politics over economics. The limit of societal constitutionalism lays in its assumption that the economic sub-system has its own rationality that the political–constitutional system can only irritate, taking for granted that the paradigm of that economic rationality is the one established after 1989, thus implicitly adhering to the neo-ordoliberal vision and legitimising its absolute immanentism. Coming to the materiality of the issues underlying the book, most of the contributions conceive globalisation as an engine for the increase of global prosperity. This confidence rests in the Ricardian theory of comparative advantage. However, the latter is valid only under condition of restrictions on the movement of capital. Another assumption made by several contributions is the theory of the varieties of capitalism, according to which individual models of capitalism tend to stabilise around certain production regimes whose key actors are large firms and business associations. According to an alternative, neo-Kaleckian paradigm, there is no natural convergence of the actors of the economic system towards a mutually beneficial institutional set-up, and it is quite unlikely that, without the external intervention of politics, the system can return to equilibrium.

This Special Issue stems from some of the insights at the “Future of Food Law” Conference held at Wageningen University and Research (WUR) in 2023, prompting an examination of the Farm to Fork (F2F) Strategy’s achievements and shortcomings. With the von der Leyen Commission’s term concluding, the paper critically assesses key aspects of the F2F Strategy, laying the foundation for an in-depth discussion presented in six contributions. The exploration extends from US and EU perspectives to national considerations, moving even further and beyond the boundaries of the Strategy. It encompasses emerging views on food safety, fostering fair and sustainable agri-food production models, encouraging healthier and democratic food choices, and reevaluating decision-making distribution from EU to Member States in sustainability regulatory actions. This issue aims to probe how agri-food regulatory frameworks should adapt to current challenges, acknowledging new economic, social, and environmental expectations. As a frame to the six contributions, this paper addresses the substantial delay in implementing crucial food law interventions, with a focus on the legislative Framework for Sustainable Food Systems (SFSF). The paper concludes by outlining potential scenarios for the future of EU food law, emphasising the necessity for establishing a guiding principle of sustainability for food systems.

This article analyses the challenges that online marketplaces and e-commerce pose to traditional product liability doctrines. It uses a comparative perspective to examine whether an online platform can be liable to a consumer for a defective product purchased on its platform, and the adaption of product liability law to this challenge in a series of jurisdictions. It reflects on the role of litigation and regulation, focusing on Europe and the United States, and considers reform in a number of jurisdictions in this area. It concludes with proposals for increasing the accountability of online marketplaces for products sold on their websites.

European financial regulation consistently gives governments privileged access to private investors, reflecting the anchor role assigned to sovereign securities as safe and liquid assets for the financial system. Legislative reforms after the financial crisis of 2008 further expanded the preferential treatment of sovereign securities as zero-risk claims, introduced portfolio requirements in favour of public debt, and constrained market speculation against governments. These sovereign privileges appear counterproductive for fiscal discipline and financial stability: they encourage excessive public debt issuance and make financial institutions holding government bonds - in particular from euro area countries with a variable risk profile - vulnerable to fiscal turbulence. Governments seem to have a conflict of interest. On the one hand, they are prudential regulators of financial risk-taking, on the other hand, they tend to overlook the financial sector's exposure to sovereign risk. This article considers four theories of the state-finance nexus and their solutions to this conflict of interest. The money view, the franchise view, and the modern financial repression view draw on the state's monetary and regulatory powers over finance to confirm sovereign safety. Their positions fundamentally contrast with the neoliberal view, which relies on free markets to enforce sustainable public finances. The article concludes that sovereign privileges present a fundamental dilemma for European financial governance with a neoliberal orientation: they oblige private investors to hold public debt, while weakening the role of markets in promoting fiscal discipline as the very foundation of sovereign safety.

The established view in textbooks and legal commentary is that the Court’s case law should be viewed as a coherent whole. In this article, we ask whether European human rights law is as unified and European as is often presumed. Based on a citation network of all Chamber judgments from 1998–2018, we argue that the practice of the Court is to some extent split in different strands of case law, where the Court reuses particular factual and legal arguments against the same state without applying those as precedent against other states. We quantify this phenomenon and exemplify it qualitatively. Our data also suggests that the trend is declining. We explain this by the introduction of the Pilot Judgement procedure and an increasing bureaucratization of the Registry, aligning the citation practices of the Court’s five sections. The article situates itself within a broader debate about both legal pluralism and the principle of subsidiarity inherent to the European human rights system and proposals to bring the Court “closer” to the contracting states. We introduce a new and more diversified view on the Court’s practice, understanding it as perhaps less homogenous than has hitherto been thought.

This article examines the reasons for different constitutional approaches to platform governance across the Atlantic. By adopting a comparative perspective under the lens of digital constitutionalism, it analyses the move from converging to diverging strategies of the United States and the European Union to address platform governance. From a liberal approach inspired by the US framework at the end of the last century, the European Union has moved towards a constitutional democratic strategy as demonstrated, for instance, by the launch of the Digital Services Act. On the other side of the Atlantic, the United States has reacted to the consolidation of platform governance by maintaining a liberal approach based on a vertical paradigm driven by the First Amendment. Given these democratic and liberal approaches, this article explains how the different constitutional premises of the United States and the European Union have produced diverging responses to the power of online platforms, thus underlining different expressions of digital constitutionalism across the Atlantic. The first section of the article introduces the rise of digital constitutionalism as the primary research angle to study the trans-Atlantic approaches to platform governance. The second section compares the European and US responses to the rise of platform powers. The third section focuses on the implications of these different constitutional strategies on a global scale.

The article tests the claim of feminist scholars that concerns about gender have been marginalised in refugee law, by exploring the interpretation given to the concept of a ‘Particular Social Group’ set out in the 1951 Refugee Convention. It is argued that recent practice at the supranational level in the European Union has contributed to the deterioration of refugee protection standards for women seeking asylum from gender-based violence. However, the article demonstrates that a human rights-based approach to the interpretation of ‘Particular Social Group’, which is supported by extensive examples of good practice in individual Member States, has the potential to redress this.

The decision of the Court of Justice of the European Union in Slovak Republic v Achmea dealt a major blow to the predictability of the legal regime for the protection of foreign investments, whilst failing to offer a realistic, clear and sustainable solution for the protection of investments within the European single market. Commentators have mainly considered its implications from the perspective of the European Union or International Investment Law, and the potential conflict of regimes. This article offers a different approach, arguing that a reading of Achmea based on a moderate version of legal pluralism could adequately respond to the legitimate concerns about the case from both international and European legal perspectives. It is argued that the imprecision of the decision is in fact constructive ambiguity, allowing a sufficient margin of appreciation for all stakeholders and avoiding direct confrontation between the European and international legal orders. Recent developments, such as the innovative EU agreement for the termination of intra-EU BITs, point to new opportunities for ordering pluralism in the Achmea saga.

The Brussels I Recast Regulation entitles business actors to agree on which court(s) will have jurisdiction but restricts the effectiveness of such jurisdiction agreements to disputes ‘which have arisen, or which may arise, in connection with a particular legal relationship’. This article fills a gap in the academic literature by examining the content and implications of this necessary connection (proximity) between the claim and the legal relationship between the parties. First, it characterises claim proximity as a question of party autonomy by distinguishing it from the subject matter of the jurisdiction agreement, which is an issue of contract interpretation. Second, it scrutinises the foreseeability test which has been frequently used by the CJEU in order to determine claim proximity, highlighting its main operational aspects. Building on both theoretical considerations and some cases where the foreseeability test has been used by domestic courts, this article provides clarifications about the scope, the proper functioning and the limits of such a test in order to raise awareness regarding the difficulties that may arise in its use in court to determine claim proximity and therefore assess jurisdiction.

The relationship between EU citizenship and nationality is still defined by ‘linkage’ and ‘derivation’: national citizenship enjoys primacy over and conditions access to EU citizenship. However, because naturalisation decisions have a European dimension as well as a cross-border dimension, various commentators have questioned whether this primacy is desirable. This article examines alternative models of EU citizenship and argues that the answer is not to reconsider the criteria of ‘linkage’ and ‘derivation’, but to create some common EU rules on ‘access’ to national and EU citizenship. A particularly attractive solution is for rules on the grant of nationality to be guided by the idea of a ‘genuine link’. Reflecting on the Commission's recent report on investment citizenship within the EU and the debate it provoked, this article questions whether such shared rules can currently be adopted.

Distorted images of American regulatory ideas and practices frame foreign responses to these practices as well as foreign views of the economic policies of the United States. U.S. power both embeds and contributes to these distorted images. This article highlights the evolution of these distortions and the ways in which business history has intertwined with legal and political history throughout the evolution. It focuses on a specific area of regulation—antitrust or competition law—in order to ground the more general discussion. The article provides insights into the relationship between cognitive distance and power and into its pernicious effects on transnational discussions and decisions involving competition law.