The question to what extent EU law is constitutive of European society as articulated in Article 2 TEU is, at its core, a question about the nature, scope and limits of EU law. This article suggests certain clear limits to EU law’s ability to make the European society visible in law, or legible for law – let alone composable through law. The article is entitled ‘Is this Europe?’ as a direct challenge to the widely held belief that EU law is somehow constitute of European integration; that EU law contains all that European integration is, can and will be. Sure, the Europe that we see when analysing cases, treaties and legislation matters. But the ‘real’ Europe – the one that is felt, experienced, lived – resides in what happens due to, in spite, or irrespective of those cases, treaties and legislation. For EU law to remain sensitive to its society, then, EU law needs to reformulate the expectations it has of itself and create an analytical framework that allows it to transcend its immanent nature. This requires three changes to the way we ‘do’ EU law. First, more sensitivity to the material and relational context in which EU law operates. Second, creating space for forms of lay knowledge that are rooted in social praxis. Third, more ambition and playfulness in the way we – as scholars – ‘speak’ EU law.

Over the last two decades, Marxism has experienced a significant revival, including in the discipline of law. The 2003 Iraq War and, perhaps more obviously, the 2008 financial crisis posed questions about the relationship between law, capitalism and imperialism that mainstream legal scholarship had difficulty answering. One marked exception to this revival has been in the field of European Union (EU) law. EU law scholarship, perhaps understandably given that few Member States participated in the invasion, had little to say about the Iraq War. For its part, the 2008 financial crisis and its manifestation in Europe as the ‘Euro-Crisis’ prompted a ‘critical turn’ in EU legal studies.1 However, these two movements – the Marxist tradition and critical EU law scholarship – have largely failed to meet. Marxist analyses of EU law, let alone the development of a full-blown Marxist theory of EU law, remain almost non-existent.

Few issues remain as fraught as the relationship between European integration and national welfare states. For too long, Social Europe was an afterthought, relegated to the soft domain of the open method of coordination, while the formation of the single market proceeded with the full force of European law and institutions. Since the 2008 financial crisis, the social has returned—not just in Europe, but in all regions grappling with what comes after neo-liberalism. In this response, I turn to Christian Joerges’s seminal articulation of the conflict of laws as Europe’s constitutional form as a contribution to this current theoretical task. Central here has been how Joerges has staged a dialogue between theories of European law and the critique of the market order developed by the Hungarian philosopher and social theorist Karl Polanyi. I argue that Joerges picks up on democratic undercurrents in Polanyi’s theory that move beyond the opposition between nationally bounded welfare states and transnational private economic rights. Rather, we can see the social as a domain of multi-level democratic conflict mediation. While Joerges respects the ordoliberal vision of an economic constitution, he draws attention to their democratic deficits. Indeed, both the ordoliberals and Polanyi would reject the EU’s technocratic instrumentalisation of the market as a device for restructuring national social systems in a way that both deformalises European law and undermines its democratic legitimacy. I conclude with some speculative remarks about how the EU could be seen as introducing new dimensions of conflict into an emerging post-neoliberal order.

EU legal scholarship’s recent ‘turn towards society’ demands new approaches to studying how EU law has been experienced and shaped both at present and in the past. Yet, there has been relatively little research on the engagement of societal actors with European law beyond a narrow focus on litigation. This article looks at a more indirect engagement with legal norms. Using the contested compliance with the EC’s 1982 Seveso directive on industrial safety as a case study, it uncovers the pivotal role that individuals and societal organisations played in procedures that have thus far been considered highly institutionalised: the infringement proceedings started by the European Commission. By tracing how the problem of preparing for disaster came to be regarded by societal actors in Italy and the Netherlands as both a legal and a European problem, it advances an approach showcasing that societal actors experienced EU law less as a separate category and more as part of a broader continuum of solutions to a societal problem.

Why should one expand Christian Joerges’s pioneering concept of ‘Europe’s conflicts-law constitution’? The European constitution should consistently incorporate the double plurality of Europe because, for centuries, Europe has been governed by two powerful pluralities that are orthogonal to each other, but at the same time closely interpenetrate each other. Europe’s material constitution is characterised not only by the conflicts between nation-state policies, but also by the deeper conflicts between different intrinsic normativities of societal institutions.

The European conflicts-law constitution should therefore not only realise the transnationalisation of the ‘political’ constitutions of the nation states and their underlying conflicts, but also a ‘societal’ constitution that inscribes itself into the conflicts of previously unconstitutional worlds of meaning. On the basis of this extension, Joerges’s ideas can be made fruitful beyond the conflicts-law constitution that he confined to the EU‘s political system. If their extension to sectoral constitutions of Europe is taken seriously, the three strategies, which Joerges developed for conflicts between nation states, are also promising for conflicts triggered by the diversity of functional systems. In three case constellations, the article outlines how Joerges’ methods can be successfully applied in the most recent European sectoral constitution – in ‘Europe’s digital constitution’.

When the Treaty of Rome (the Treaty) was signed, the legal profession believed it had no impact on its organisation. Yet, from the very beginning, the Directorate General (DG) Internal Market started to work on a directive that would facilitate the circulation of lawyers within the European market. This article is based on the analysis of the 16-year debates leading up to the adoption of the 1977 Directive, which facilitate the effective exercise by lawyers of freedom to provide services. It adopts a bottom-up, actor-centered approach, to understand the role of lawyers and the importance of legal professions in the construction of the common market. Using archival study, interviews and legal analysis, the article shows that the integration of European legal professions cannot be understood without studying the historical structures of each national profession. Moreover, the rallying of lawyers to the European project can only be attributed to the active interpretative work of multipositioned actors.

In the particular world of contemporary EU law, European society has the meaning of a place. Appreciating this requires considering the relationship between European society and another key concept, that of EU values. This relationship is one of mutual balance but also tension: while the latter are abstract calls for offensive action on the part of EU institutions, the former is identified as a concretely located space that must be preserved and defended. The paper begins with a close textual reading of Article 2 TEU, focusing on the provision’s specific architecture. There, European society appears as a singular reality – that of a concretely situated perimeter of social relations that the EU claims as its own – which pre-exists the EU’s institutionality and enables its foundational commitments to the realisation of a series of values. The second and most important part of the paper then contends that this particular arrangement should be understood as a function of the EU’s evolving external ambitions and self-positioning vis-à-vis the outside world. Thus, contrary to the common tendency to see the EU’s external projections as resulting from its own internal identity and dynamics, I will argue that here it is the internal that follows the external. On this basis, it will be shown that the complementary relationship between European society (as place) and EU values (as action) that I identified in the architecture of Article 2 TEU is reflective of the delicate compromise between the rise of the EU’s neo-imperial ambitions at the regional and global levels (for which values serve as a vehicle) and the construction of an increasingly hard boundary between an inside and an outside to the EU order (which the concept of European society serves to draw, justify and implement).

This article establishes a foundation for the development of Marxist approaches to European Union (EU) law. While Marxist scholarship has engaged with European integration throughout its history, it has largely overlooked the legal architecture of the EU. Conversely, EU legal studies have remained largely insulated from Marxist thought, even as critical approaches have begun to gain traction. Bridging this mutual neglect, the article argues that EU law must be understood not as a neutral or technocratic system, but as a central element of capitalist social relations both in Europe, and in terms of Europe’s wider integration in the global market. In this way, EU law is bound up with processes of accumulation, imperialism, and racialised social reproduction. Drawing on key currents within Marxist theory, the article situates EU law within the historical dynamics of capitalist development, demonstrating how a materialist legal analysis can deepen and enrich existing critiques of European integration.

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.

This article examines the constitutional imagination of European policymakers and legal scholars in the 20th and 21st centuries who participated in key treaty drafting processes that led to the listing of a series of values central to Europe’s identity in the 2012 Treaty on the European Union (TEU) and the 1919 Treaty of Versailles, which established the League of Nations – or Société des Nations (SDN) –and the International Labour Organization (ILO). Based on this historical comparison, the article argues that the concept of a European ‘society’ characterised by a specific set of what I call ‘social-democratic values’ (listed in Article 2 of the TEU) should be read in continuity with the 20th-century civilizational project of modern international law scholars who shaped the working of the SDN in the interwar era. Many international legal scholars close to the SDN were inspired by the French sociological school and social-democratic ideals: they anchored the working of international legal rules on the solid rock of an ‘international society’ marked by a series of values which seemed ‘modern’ in the sense that they reflected the emergence of a ‘society of individuals’ whose freedom and social rights went beyond those granted by sovereign states at the time. When seen against this historical background, the introduction in Article 2 of the TEU of a concept of ‘society’ characterised by such social-democratic values, such as pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men, to ground the EU’s constitutional order, betrays less the influence of contemporary sociological thinkers on the EU constitutional framers, than that of socio-legal theories developed by interwar scholars who wanted to modernise the operations of European colonialism and internationalism.

The article proposes a historical materialist reading of the European Union, placing the class struggle at the heart of the analysis of the EU project. A central idea is that historical development is the result of social conflict, a ubiquitous force which materialises unevenly at multiple levels, nationally and internationally. As far as the European Union is concerned, it is argued that class struggle occurs predominantly at the level of Member States rather than transnationally at the level of the Union. This reading has several repercussions. An important repercussion is that by anchoring the understanding of the EU to the struggle born out of the material clash between interests of national collective forces, this contribution distances itself from liberal idealistic readings of the Union that see the EU as an example of Kantian cosmopolitan right. Where the latter approach sees the European Union as a real-life example of universal hospitality, historical materialism sees a Union divided along class- and national lines. The article supports that the latter understanding is in a better place to describe the nature of the EU project.

In legal discourse, the Marshall cases (C-152/84 and C-271/91) have become known as landmark judgements for gender equality. Yet for historians, Helen Marshall’s legal journey is an invitation to make a broader claim of how to approach a landmark case in the history of European law ‘from below’, moving away from a binary analysis of European institutions on the one hand and national structures on the other. Based on original research using a wide range of newspaper articles, published documents from the European Court of Justice (ECJ) and archival documents, this article follows Helen Marshall’s legal journey from 1978 to 1993. Using Marshall’s individual role as a ‘heuristic tool’, the article argues that Marshall was a ‘legal entrepreneur’ of her own cause with her actions reflecting the British zeitgeist through the medium of European law. It demonstrates that the legal construction of the Community was by no means a project driven solely by elites. The article further nuances the notion of Britain, as a nation, as an ‘awkward partner’ by highlighting that Marshall, a British citizen, actively contributed to European integration within a complex of other actors.

This article approaches the issue of the European Union’s (EU) democratic deficit from a Marxist perspective. This issue has been central to the exponential rise of Euroscepticism that influenced processes like Brexit and Grexit (despite the latter’s frustration), as well as the rise of explicitly anti-EU national governments in European countries. This article shows that critiques of the EU’s democratic deficit (even cutting-edge ones, like the one placing emphasis on the notion of the ‘economic constitution’) are inadequate because the debate is already embedded in ideological compromise. Offering a brief exposition of the Marxist approach to the democratic form of the capitalist state, it attempts to show the limitations of critical approaches which overlook the issue of class rule and state power in their calls for democratisation. To do so, the article outlines the structural function and class character of the EU, as well as its role as a (supra-)state formation in the process of capital accumulation. Ultimately, it offers a Janus-faced critique of democratic deficit in Europe, one the one hand arguing that the critique of the EU economic constitution as neoliberal is limited because it fails to account for the scope of reform that the EU allows to respond to the challenges of the process of capital accumulation, while on the other concluding that the solution to the democratic deficit cannot simply be a return to nation-state democracy which is equidistant from actual self-government of the popular strata as its EU counterpart.

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.

In this essay, I reflect on the evolving role of the European Union (EU) as a global regulatory state against the backdrop of Christian Joerges’s influential work on European constitutionalism. Engaging with Joerges’s intellectual oeuvre represents a personal moment in my academic journey, having come of age as a scholar under his guidance during my PhD studies at the European University Institute in Florence. I therefore would like to use the opportunity to critically engage with his work while situating my scholarly analysis within the broader context of my personal experiences across Europe and how they have shaped my focus on political power beyond traditional state politics. The essay begins with a personal reflection on the interplay between the personal, the political, and the academic in my work on democracy in the EU regulatory state. Subsequently, I delve into Joerges’s theory of conflicts-law-constitutionalism, examining its strengths and weaknesses, as well as its relevance for understanding the new geopolitical turn in EU external regulation and its implications for democratic constitutionalism.

One of the more remarkable developments in European law is the sudden ‘waking up’ of the European Court of Human Rights in the middle of the 1970s. This article, on the basis of extensive archival materials, follows grassroots actors as they discovered what had been a dormant part of European law, key academics with their own plans for the system and governmental officials debating in the corridors of Strasbourg in order to shed light on this development. The article argues this ‘waking up’ wasn’t the result of a top-down initiative by the Court, but rather the result of a bottom-up movement instigated by a variety of actors. As such, it ties into the recent debates on why and how actors turn to and shape European law (broadly conceived), as well as to why the Court turned active in this period. It makes the case for combining a bottom-up approach with the analysis of governmental policy- and decision-making to examine this change, as from the individual complaints grew a campaign to fundamentally change the entire system of European human rights protection.

In this interview Christian Joerges reconstructs his intellectual biography. A childhood marked, like that of his entire generation, by the Second World War, a harsh post-war period and, from an early age, a complex relationship with German identity on the shadow of Nazi crimes. A high school and university education in a Frankfurt where intellectual life is thriving amidst the ruins. And where a young Joerges discovers the beauty of theory thanks to Wiethölter. The experience in the United States where a pluralistic student movement is energised by the opposition to the Vietnam war. The construction of a law faculty in Bremen, with the almost impossible goal of transforming the teaching of law in Germany. The almost 20 years of Florentine experience, in the shadow of history and with the determination to imagine a Europe capable of being progressive. And without omitting reflections on the dark legacies of European law and on ordoliberalism, two phenomena that many European scholars have discovered thanks to Joerges.

Why do national jurists commit what appears to be blatant breaches of EU law even when they intend to comply? Instead of viewing such incidents as mere errors, I suggest one possible way of reconstructing them as meaningful social action. Drawing on Bourdieusian sociology I import the concept of allodoxia as a framework to understand the transplant of ideas about EU law into the national legal field. Allodoxia helps to unpack the structural tension that occurs between the habitual dispositions of the national jurists and the increased pressure from EU. Adding to this, I also use the notion of ontological primacy to conceptualise the symbolic dominance asserted by EU law over the worldview of national jurists, a dominance which obscures a proper understanding of the latter’s actions. I illustrate the argument with a case study of one such blatant ‘error’, when prominent Danish jurists in the late 1980s drafted and defended a buy-Danish clause in the tender materials for a major infrastructure project, the bridge over the strait of Storebælt. By insisting on the ontological parity of European EU law and national EU law respectively, and by using allodoxia as an analytical framework, we can better understand misapplication of law beyond the tradition error-paradigm, adding to our understanding of national reception of EU law. In a broader context, the Article aims to continue and broaden the introduction of a Bourdieusian approach to EU legal scholarship, in particular by drawing attention to the functioning of EU law within Member States.

The European Union (EU) Emissions Trading System (ETS) is the cornerstone of the EU’s attempt to decarbonise economic production in Europe. This paper questions the power and class relations that are built into the EU’s choice to address the climate crisis through the legal construction of emissions trading. Drawing on Marxist theory, the paper argues that the cost of emission allowances imposed by the ETS is a form of climate rent. In both the choice of this system and its implementation, the EU prioritises capital accumulation in order to protect the competitiveness of EU firms on the global market. This paper argues that the ETS thus jeopardises the progress of decarbonisation on two grounds. First, the EU’s implementation of the ETS has tended to increase the economic wealth of capital by redistributing economic value away from workers and towards the capitalist class. By raising the cost of essential goods, the ETS will likely damage the reputation of climate action and thus jeopardise public support for decarbonisation. Second, the ETS is part of the EU’s indirect approach to climate policy, which seeks to shape the actions of private capital in the direction of climate objectives. However, the severity of climate change calls instead for the use of law and public power to directly and consciously shape the rapid decarbonisation of society.