Prefigurative practices aim to foreshadow the more just society a radical political transformation would bring. So far, there has been little attention for the possibility of prefigurative legal practices. Perhaps the assumption is that prefigurative law is a contradiction in terms. Given the law’s structural complicity in social oppression, marginalisation, and exploitation, how can it ever be part of the solution? The idea of a prefigurative EU law may seem even more absurd. The EU and its laws are deeply entangled with capitalism, racism, imperialism, and premature deaths at its borders. Surely, EU law is beyond repair? But is it? This article suggests the opposite. It argues that a radically different EU law could become a source of hope for a society without structural oppression and marginalisation. Most concretely, it proposes to occupy the European Commission’s recent plans for a 28th legal regime. To this end, it shows how the Commission’s idea of a deregulatory sandbox could be turned into a prefigurative proposal, foreshadowing the legal non-regime for a radically horizontal European society without borders.

In core government and for public tasks hugely sensitive for citizens such as migration governance in Europe, the use of AI systems developed and provided under contract gives migration authorities and private providers the power to keep their deployment secret and to refuse access to their key components. This article explores the complex interplay between public and private drivers of secrecy surrounding procured AI technologies in European migration governance, demonstrating how these forces converge and reinforce one another. It examines AI secrecy as an institutional framework shaped by both public and private law forms of secrecy, applying the spectrum of secrecy from deep (unknown unknowns) to shallow secrecy (known unknowns). Specifically, the paper looks into the sources of ‘political secrecy’ in migration and security authorities, highlighting how migration agencies and authorities keep the existence and use of AI systems from civil society and affected persons (such as third country nationals). Next, it analyses the legal frameworks that sustain AI vendors’ private secrecy, such as trade secrecy, secrecy in procurement procedures and agreements. In examining the various secrecy points, it scrutinises the limited impact of the AI Act in addressing the entrenched secrecy of AI deployment and development in governing migration. Finally, we condense the main takeaways and examine the broader repercussions of AI secrecy beyond the context of border control, touching upon its implications for a new equilibrium transcending the conventional public/private divide.

Since its ruling on the Maastricht Treaty, the German Federal Constitutional Court has developed a doctrine that elevates the fundamental constitutional principles in conjunction with the right to vote to the status of a ‘right to democracy’. In this Article, we explore how plaintiffs draw on the right to democracy in an effort to activate the Court’s self-asserted prerogative of ultra vires and identity review and keep Karlsruhe in the game of adjudicating on the conditions and boundaries of European integration. We assume that the legal opportunities associated with constitutional complaints invoking the right to democracy involve a dynamic, interdependent relationship where (the same) plaintiffs build on existing case law to develop legal arguments and where the Court evaluates, refines and codifies these arguments. To substantiate this interactive process of an expansion of legal opportunities, we draw on a largely untapped data source and use the original pleadings in four cases against the Outright Monetary Transactions (OMT) and the Public Sector Purchase Programme (PSPP) of the European Central Bank, linking these complaints to the respective court decisions.

Half a century ago, Martin Shapiro discovered that European constitutional scholarship was stuck at a stage of ‘constitutional law without politics’, presenting the EU ‘as a juristic idea; the written constitution as a sacred text; the professional commentary as a legal truth; the case law as the inevitable working out of the … constitutional text; and the constitutional court as the disembodied voice of right reason’. Recent efforts to doctrinally construct the values in Article 2 TEU show that the mistakes identified by Shapiro persist to this day. This article examines the proposals for constructing Article 2 TEU by Armin von Bogdandy and Dimitri Spieker, and offers three criticisms: First, their doctrinal constructivism is ill-suited to constitutional reasoning. Second, their reasoning has evolved in a way that their work has become self-contradictory. Third and most importantly, especially due to the evolution of their thinking, their scholarship amounts to constitutionalism without principle. Not only does their work lack consistent principled foundations, it also neglects the principled choices underlying EU constitutional law. Moreover, as they do not maintain any critical distance to the CJEU, their work does not offer a principled basis for evaluating its case law. Finally, and most critically, the principles informing their arguments produce an increasingly undemocratic and unconstitutional view of EU law. To address these deficits, I revisit the call for a more contextualised study of European law made by its earliest proponents four decades ago, and demonstrate its continued relevance. Rather than pursuing institution building, EU constitutional scholarship should examine and critically interrogate the socio-political choices underlying the evolution of EU constitutional law.

This paper examines the evolution and implications of ‘must-carry’ obligations in the regulation of online platforms, with a focus on Europe. These obligations, which restrict platforms’ discretion to remove or deprioritise certain content, represent a novel regulatory response to the growing power of platforms in shaping public discourse. The analysis traces developments at EU and national levels. At the EU level, it considers rejected must-carry proposals during the drafting of the Digital Services Act (DSA) and the adoption of Article 18 of the European Media Freedom Act (EMFA), which grants privileges to recognised media service providers. At the national level, it examines Germany’s prohibition on content discrimination, the UK’s Online Safety Act, and Poland’s abandoned legislative proposal on freedom of expression online. Case law from courts in the Netherlands, Germany, Italy, and Poland further illustrates the emergence of judicially crafted duties resembling must-carry obligations. The paper argues that these measures are best understood as special treatment rules that privilege particular speakers, notably media organisations and politicians, by limiting platform autonomy in content moderation. While intended to safeguard pluralism and access to trustworthy information, such rules risk creating a two-tier system of expression in which established voices receive disproportionate protection while ordinary users remain vulnerable. Protections for politicians raise concerns about shielding powerful actors from justified moderation, whereas media privileges, though more defensible, remain limited in scope and potentially counterproductive, especially when exploited by outlets disseminating disinformation. The conclusion is that compelled inclusion and preferential treatment are unlikely to offer sustainable solutions to the structural imbalances between platforms, media providers, and politicians. More durable approaches should focus on strengthening journalism through financial and structural support, fostering innovation and local media, and prioritising user empowerment measures. Only systemic safeguards of this kind can effectively promote pluralism, accountability, and resilience in the digital public sphere.

This article revitalises the debate on European citizenship by redefining its meaning within the EU and contributing to a broader understanding of constitutional transformation under conditions of post-national governance. Moving beyond the comparative method that evaluates European citizenship through the lens of national citizenship, it reorients the analytical focus to the interaction between national and European rights and introduces the concept of European Material Citizenship. This new form of citizenship reflects a normative shift in the regulation of social, political and economic relations within a constitutional order reshaped by European integration. While national citizenship synthesised the normative ideal constituting and regulating the relationship between the nation-state and individuals, European Material Citizenship synthesises the normative ideal governing a far more complex constitutional geometry – composed of European institutions, Member States and citizens.

The mood amongst workers in Western Europe as the 1960s ended was one of frustration and anticipation. From the streets of Paris in May 1968 to the factory floors of Turin in the autumn of 1969, social movements of workers and students demanded a real say over their daily lives and the institutions that shaped them. These calls for economic democracy were picked up by trade unions, national politicians and, eventually, the European Commission. In 1973, having published proposals that included plans for ‘worker participation’, the Commission wrote that if employees did not have a voice, the Commission’s proposals would not ‘satisfy the requirements of society today’. However, the Commission’s interpretation of industrial democracy was criticised by trade unions and socialist politicians, buoyed by the militancy of the workers, for not going far enough. As the Commission tried to persuade labour representatives that the European project was taking their demands seriously, another critique of worker participation crystallised on the right. As Keynesianism lost credibility in Member States, and a neoliberal discourse emerged around the need for Europe to be ‘competitive’ and ‘flexible’, employer groups pushed back against worker participation and undermined a labour movement that had posed a genuine threat to capital’s interests. This paper tells the story of one component of the Commission’s plans: the proposed Fifth Company Law Directive. Using archival material from EC institutions and employer lobby groups, it argues for an understanding of company and labour law harmonisation that takes seriously the political economy of Western Europe during the ‘Long 1970s’.

European Union (EU) consumer law is rather one-size-fits-all, meaning that it largely disregards differences between consumers and their protection needs. Consequently, there is underprotection, which can not only harm the internal market but is also at odds with the EU’s commitment to ensuring a high level of consumer protection. To be able to propose directions for improving the differentiation between consumers in EU consumer law, this paper answers the question of how the differentiation between consumers is currently operationalised and how that results in underprotection. Building on, among others, Black’s regulatory theory of the nature of legal rules, it is argued that a legal rule’s level of differentiation depends on how accurately its application conditions predict the situations in which it should apply, considering its aim. Through the application of this theoretical framework, it is argued that it is not just EU consumer law’s status-based application conditions that disregard individual differences between consumers. EU consumer law’s fact-based and norm-based application conditions also do not prevent the status-based application conditions from paving the way for underprotection. In support of this argument, several bottlenecks regarding the differentiation between consumers are identified, including the use of the average consumer benchmark, the emphasis on situational fact-based application conditions, and the rather limited role of norm-based application conditions. Altogether, these findings provide several directions for improving the differentiation between consumers in EU consumer law.

The ecological transition needs a shift in the definition of the role of the state from a market-correcting to a market-steering actor. This transformation inevitably reverberates within private law, whose institutions participate in distributing the social and economic burdens of sustainability policies. Focusing on the housing sector as a paradigmatic site of tension between environmental imperatives and social justice, the paper examines how measures aimed at improving the energy performance of buildings and promoting urban greening can generate regressive distributive effects, including rising housing costs, green gentrification, and heightened risks of indebtedness and displacement for vulnerable groups. Against this background, the paper argues that private law must be reconceptualised as a tool capable of mitigating these structural inequities.

For as vivid the academic debate around issues of algorithmic bias, discrimination and unfairness has been in the context of EU law, little attention has been paid thus far to the way in which such instances have been dealt with by courts. This article examines from a non-discrimination law perspective how domestic courts of Member States as well as the European Court of Justice have approached cases of algorithmic bias in automated decision-making, by focusing on the judges’ engagement with discrimination-related considerations. For the purposes of my analysis, I propose a taxonomy of judgments dealing with cases of algorithmic bias and analyse a number of examples accordingly to showcase the distinct features of each category. In this regard, a first distinction is drawn between judgments relating to cases of ‘algorithmic discrimination’ and those concerning cases of ‘unfair algorithmic differentiation’. Depending on the extent to which courts take into account any risks of discrimination in the cases falling under the second category, I further distinguish between judgments of ‘discrimination reflection’, those of ‘discrimination awareness’, and those of ‘discrimination silence’. On the basis of this classification, I then attempt to shed more light on how non-discrimination and data protection law may interact with each other in practice in cases of algorithmic bias. Finally, the article concludes with some reflections on the prevailing tendency to address equality concerns through recourse to data protection rules.

The ‘Digital Economy and Society Index’ (DESI) Dashboard for the Digital Decade is a set of indicators created by the European Union in the early 2010s to monitor Member States’ progress in pursuing the EU’s Digital Agenda, as well as many of the goals of the UN’s 2030 Agenda for Sustainability. The figures provided by the Dashboard are perceived by academics, the media and the general public as objective neutral data on the progress of Member States towards digitalisation, and on the promotion of sustainable development. This short contribution unpacks the Dashboard, examining the variables it considers and the methodology it employs, and finds out a very different picture. The Dashboard mainly assesses how easily people can access products and services online. It thus promotes a pro-market digitalisation agenda that excludes any other possible alternative and has little to do (if any) with the idea of sustainability. As is often the case with quantitative measurements of social phenomena, behind its seemingly scientific numerical veil the Dashboard conveys a policy vision that is hardly compatible with the objectives the Dashboard allegedly promotes. The essay thus raises broader questions as to the legitimacy of governing through indicators and as to the role of EU in shaping Member States’ digital future.

In the JURDI case, a French non-governmental organisation invoked Article 265 TFEU to challenge the EU Commission and Council’s inaction towards Israel despite the finding of the International Court of Justice that there was a plausible risk of genocide in the Gaza Strip, in its 2024 orders in South Africa v Israel. This article draws on this case to argue that Article 265 TFEU – originally conceived as an interinstitutional remedy – could constitutionalise the EU’s positive obligations under jus cogens (genocide prevention and respect for international humanitarian law) and under Articles 2, 3, 19, 21 TEU, thereby overcoming the restrictive standing rules inherited from Article 263 TFEU. The case offers an opportunity to reflect on the capacity of the EU courts to acknowledge the mobilising potential of civil society organisations and secure accountability in the case of breaches of EU and international law.

Article 265 TFEU establishes a judicial mechanism to challenge the failure of the institutions of the European Union (EU) to act, yet, its practical relevance has long been constrained by restrictive admissibility requirements and judicial deference to institutional discretion. This article re-examines the scope and constitutional significance of Article 265 TFEU through recent litigation concerning alleged EU inaction in response to the humanitarian catastrophe in Gaza. It asks whether meaningful judicial engagement in such cases places unrealistic demands on a procedural framework and judiciary traditionally cautious in matters of external relations. Rather than treating Gaza-related failure-to-act actions as exceptional or merely political, the article situates them within broader debates on EU constitutionalism, accountability, and the limits of legal mobilisation in geopolitically sensitive contexts. It examines how doctrinal requirements—including the need to identify a specific legal obligation to act, the restrictive conception of reviewable inaction, and narrow standing rules—continue to shield institutional inertia from effective judicial scrutiny. It further considers the normative implications of this approach in light of the EU’s commitments to international law, human rights, and humanitarian principles. The article argues that the General Court’s restrained approach reflects not only doctrinal limitations but also deeper structural tensions between law and politics in EU external action. Although Article 265 TFEU may be ill-suited to compel institutional action in foreign-policy crises, its restrictive interpretation risks undermining judicial accountability where claims of legal responsibility are most pressing. Gaza litigation therefore provides a valuable lens for reassessing the limits of EU judicial review and the role of courts in addressing systemic institutional inaction.

This is a commentary on von Bogdandy’s article ‘On the Meaning and Promise of European Society’. It attempts to outline what an account of European society might look like if it were formulated from a more straightforward Hegelian perspective.

This article offers a critical literature review on the debate on constitutional identity, combining a synthesis of existing literature with a critical reframing of the concept’s theoretical and methodological foundations. While constitutional identity has become increasingly prominent in legal and political debates – particularly within the European Union – its meanings and functions remain contested. The article develops a typology of approaches to constitutional identity, distinguishing two main strands. First, it examines constitutional identity as a legal doctrinal notion. In this sense, identity can function either as a static concept – anchored in an unchanging normative core that limits political or legal interference – or as a dynamic concept, shaped through interactions between domestic constitutional orders and external legal ideas and practices. Second, the article turns to the descriptive use of constitutional identity, understood as a way to explain how a political community understands itself through its constitution. This part surveys key philosophical debates, including how constitutional identity negotiates sameness and difference, how it evolves over time, how it relates to competing conceptions of the constitutional subject, and how it is constructed through narrative, symbolism, and social practice. The article concludes by arguing that if constitutional identity is not a fixed essence but a dialogical and constructed assemblage of identities, then its study must go beyond the legal domain. It calls for a deepening of the interdisciplinary research agenda that includes insights from philosophy, sociology, discourse theory, and literary studies.

This introduction to the Symposium on the (re)turn of activist government in the EU is structured around four guiding research questions: whether the EU’s shift toward state interventionism is structural or contingent; how the emerging forms of state activism relate to the preceding neoliberal paradigm; to what extent these developments align with the existing Treaty framework; and what their implications are for democratic legitimacy. Against this backdrop, the introduction surveys the contributions to the Symposium and offers some preliminary, tentative answers to these questions.

This article suggests that the economically activist tendencies of the European Union are not just a temporary response to exogenous crises, but part of a long-term transformation of the EU into a governance structure that is increasingly equipped for forms of more direct rule over its territory, economy, and citizens, albeit still in an incomplete and contested manner. This transformation hinges on three interlocking processes that feed into each other and accelerate: (i) the rise of EU-level material, financial, and institutional infrastructure; (ii) the significant centralisation of EU power; and (iii) novel narrations about the ‘point’ of the EU that stabilise its authority. This transformation of the EU brings with it new challenges for its authority. Using the work by Charles Tilly, who focuses on the way in which trust networks are integrated in rule, this article distinguishes between the EU’s ability to rule by way of coercion, by way of capital and by way of commitment. It is suggested that while the EU’s ability to rule by way of coercion and capital have grown, it remains difficult to envisage how the EU may stably reproduce commitments structures that would allow it to transition into a stable and democratic structure of governance.

This paper explores the role of identity in constitutional law, moving beyond the dominant concept of constitutional identity. While many European constitutional texts reference various forms of identity – such as national, religious, or cultural – constitutional identity has been disproportionately emphasised in academic discourse. Through an empirical analysis of constitutional provisions and court rulings across 47 European states, this study demonstrates that identity plays a broader and more nuanced role in constitutional law than previously recognised. The paper categorises four types of relationships between identity and constitutional norms: identity as a right to protection, a basis for additional rights, a principle guiding constitutional interpretation, and an identity of the constitution itself. It highlights how constitutional courts interpret and balance competing identities, influencing the application of fundamental rights and constitutional principles. By highlighting examples that represent different models of identity systems, the paper reveals the necessity of giving scientific attention to the relationships between identities. Indeed, identities can undermine liberal constitutional values by privileging certain collective identities over individual identities and individual rights. Ultimately, the study argues that focusing solely on constitutional identity as an analytical concept to designate everything even remotely related to identity in constitutional law obscures the broader dynamics of identity within constitutional systems. It calls for a strict conceptual redefinition of constitutional identity in order to better understand how identity, in all its potential forms, continuously reshapes constitutional law and influences the evolution of democratic and human rights protections in European states.