Risk regulation has increasingly expanded in European digital policy, yet it is diverging from its roots, especially the precautionary principle. Rather than traditionally focusing on scientific evidence and knowledge, the European approach to risk regulation has been increasingly based on constitutional values such as the protection of fundamental rights and democracy. This article seeks to unravel the logic that has led the Union to move from an approach to risk more based on science to a model which considers constitutional values as parameters to assess and mitigate risks. By focusing on European digital regulation, primarily the GDPR, the DSA and the AI Act, this work underlines how the constitutional rationale of this transformation comes as a response to the intangibility of risks resulting from digital technologies and to imbalances of information and knowledge coming from the concentration of private power in the digital ecosystem. The primary argument is that risk regulation in European digital policy does not seek to rationalise uncertainty through science but to govern epistemological uncertainty through the instruments of constitutionalism, with the goal of addressing the impact of digital technologies on fundamental rights and imbalances of power.

The aim of this article is threefold. First, it develops the premises on which the Special Issue “A Union of Crises: In Search of Constitutional Resilience” is based: that the omnipresence of diverse crises has become an inescapable reality for the EU, and that the low likelihood of Treaty change requires a reorientation in legal literature towards a more systematic exploration and conceptualisation of EU crisis law that transcends the hitherto focus on single-crisis measures. Second, the paper attempts to lay the groundwork for such a reorientation by offering a meta-view of what EU crisis law entails by outlining the constitutional contours of EU crisis law. It argues that the concept of EU crisis law is a combination of constitutional, international, hybrid, exceptional and legislative models of crisis accommodation, and demonstrates how these have interacted in the responses to past and present crises. Finally, the paper demonstrates how the remaining papers that form part of this Special Issue advance a meta-narrative of EU crisis and begin to provide answers to some of the most pressing issues that this nascent discipline is to address.

Under the notion of the twin transition, the green and digital transitions were conceptualised as a synergetic pair that should pave the way for a globally competitive green and digital Europe. But are European digital and environmental laws truly twins within the EU’s regulatory strategy, suggesting parallel approaches? In this article, we take a formal approach, focusing on regulatory instruments that are employed in both areas and their defining characteristics. While the twin transition in some respects blurs the boundaries between environmental and digital law, including through the integration of environmental considerations into digital regulations, we adopt an analytical distinction between the two domains. Through a series of steps, we identify key differences that set both regulatory approaches apart and help us understand the different trajectories the transitions have taken. Contrary to the often-invoked claim that form is substance, the analysis reveals that the choice of regulatory instruments does not inherently determine substantive policy choices, thereby underscoring the necessity of their comparative examination. Ultimately, the article argues that fostering dialogue between the two policy fields may yield valuable insights into how regulatory tools can be adapted and deployed across domains.

Emergency law serves the dual purpose of granting public authorities the powers to respond to emergencies whilst simultaneously limiting the use of such powers so as to prevent their abuse. To this end, it is crucial that emergency law clearly outlines its own scope by delimiting the grounds that permit the invocation of emergency powers. This article argues that defining those grounds requires distinguishing emergency from normalcy and disentangling it from the broader notion of crisis. Accordingly, the contribution investigates the extent to which a definition of emergency can be accommodated within EU constitutional law. To do so, it draws on examples from European emergency law, understood as encompassing both EU Member States’ laws and the European Convention on Human Rights (“ECHR”). The article shows that the vague emergency terminology employed in the EU Treaties hinders the identification of a horizontal definition of emergency and risks casting doubt on the constitutional legitimacy of emergency responses by the Union and its Member States.

What is adaptive regulation? Why does it matter? How can it be measured, and how can regulation be made more adaptive? I answer each of these four questions.

While the European Union was recently affected by four major and multifaceted crises which gave rise to litigation, the response of the European Court of Justice to these events has remained understudied. From a close reading of the procedural features, the legal reasoning and timing of four key judgments concerning measures adopted in the wake of the Eurozone crisis, the migration crisis, Brexit, and the COVID-19 pandemic, this article sketches a broader narrative about the Court’s response to crises which transcends the specificities of the legal issues and the context of each case. The findings suggest that the Court is likely to adjudicate a crisis case by applying the expedited procedure depending on political developments, assign a larger chamber, carefully justify its reasoning with references to settled case-law, conduct a context-sensitive balancing exercise, and deliver a decision at a politically relevant time.

This article examines the growing tension between protections for political satirical expression under article ten of the European Convention on Human Rights (ECHR) and emerging European regulatory efforts to combat disinformation through content moderation in the Digital Services Act (DSA). In this study, the case law from the European Court of Human Rights (ECtHR) have provided insights into the scope and contours of protected political satire under the ECHR, showing that the Court’s jurisprudence indicates strong protection for political satire. Meanwhile, in the social media landscape today, satire is merging with disinformation, not least around elections, potentially creating a “loophole” to spread malicious disinformation disguised as satire. Both human and automated moderation systems can easily misclassify such content, and the risks for over-removal as well as under-removal are imminent. This article therefore argues that while protection of satire and parody is essential in a democratic society, the use of it for malicious purposes speaks to the need for regulatory clarifications on how to conduct efficient content moderation to avoid over-moderation and a chilling effect on political satire, while still identifying and mitigating risks under the DSA.

The European Union (EU) has embraced the “twin transition” – the simultaneous pursuit of digitalisation and ecological transformation – as a cornerstone of its industrial policy. EU lawmakers argue that digital technologies can advance environmental protection by enhancing environmental monitoring, optimising resource use, and enabling data-driven sustainability efforts. However, this vision tends to overlook the environmental costs of digitalisation, including rising energy and water consumption, intensive resource extraction, and the proliferation of electronic waste. This article critically examines whether EU law is adequately equipped to support a twin transition, drawing on a black-letter analysis of EU legal provisions, as well as insights from science and technology studies and critical environmental law. It posits that, while environmental law plays a significant role in the datafication of the environment and the digitalisation of society, it falls short in regulating digital technology and data in ways that advance sustainability. For the twin transition to evolve beyond a political slogan and deliver real ecological benefits, substantial legal reforms would be required. The regulation of digital technology would have to move beyond corporate self-regulation and disclosure-based models of environmental governance. Data governance should be reoriented to emphasise freedom of access and a more deliberatively restrained approach to data generation.

To date, Article 2 TEU has mainly been construed as a negative obligation to refrain from violating the values enshrined therein. In light of the Repubblika case law, which established a duty to prevent any regression in the protection of Article 2 TEU values, this paper considers whether Article 2 TEU can be construed in such a way as to bring about a positive obligation on the part of the Member States to take preventive action to safeguard the EU’s foundational values and thus prevent (or at least mitigate the risk of) violations of those values. We first consider the doctrinal and normative bases for such an obligation. We then argue that such an obligation arises whenever Article 2 TEU values are presently under threat (or when a threat is imminent), and when such a threat is sufficiently grave or systemic. We believe that an interpretation of Article 2 TEU that requires Member States to act, at source, to prevent national actors from committing violations of EU values, contributes to enhancing constitutional resilience in the EU. Consequently, we propose a novel legal approach that could, under certain circumstances, better equip the EU to address future threats to Article 2 TEU.

EU policy documents often present the green and digital transitions as “twinned” and mutually beneficial. However, it is now widely acknowledged that new technologies, such as AI, have significant environmental costs. This awareness has induced the EU to recalibrate its approach to the twin transition and prompted the elaboration of new soft-law principles of digital sustainability, an early form of “eco-digital constitutionalism” at EU level. This paper examines the national AI strategies of the twenty-seven Member States to assess the extent to which this revised approach of the EU is reflected at the national level. Our analysis reveals that the strategies in question often differ starkly in the manner in which they prioritise the various matters that pertain to the intersection of environment and AI. We argue that these inconsistencies, which are rooted in different attitudes to the economics of innovation, cannot be solved fully through soft-law harmonisation.

The paper examines challenges in implementing interoperability requirements in digital markets. Designed to foster innovation and competition in retail payments, interoperability has been central to the EU’s open banking framework under the PSD2. It also plays a key role in the DMA, where interoperability requirements are aimed at supporting innovation and the framework’s goals of contestability and fairness. The paper identifies similarities between the PSD2 and DMA approaches to interoperability and outlines lessons DMA enforcers can learn from the implementation of open banking.

On June 19, 2024, the Anti-Money Laundering Regulation (“AMLR”), the Regulation establishing the Anti-Money Laundering Authority (“AMLAR”), and the Sixth Anti-Money Laundering Directive (“AMLD6”) were published in the Official Journal of the EU, signaling a significant shift in the institutional and substantive architecture of anti-money laundering (“AML”) frameworks within the Union. More than simply enhancing existing rules, the new regime introduces innovative solutions to address persistent deficiencies in previous AML/CFT frameworks, particularly the fragmentation across Member States. A notable innovation is the extension of the AML regulatory framework to the professional football sector, which has become increasingly vulnerable to illicit financial activity due to its complex organisation, large financial flows and opaque ownership structures. As a result, professional football clubs and football agents are now subject to AML requirements, including customer due diligence, transaction monitoring and reporting suspicious transactions. This article examines the recently introduced AML obligations for the football sector, navigating the complex regulatory framework and mapping out the underlying requirements. The aim is to increase awareness and understanding of these obligations, thereby aiding football clubs and agents in complying with them and ensuring the integrity of the European football industry.

In two fields that are currently of high political salience and strategic significance – the regulation of digital platforms, and the regulation of environmental and human rights impacts in global value chains – the EU has taken a strikingly similar regulatory approach. In the 2022 Digital Services Act and the 2024 Corporate Sustainability Due Diligence Directive, it has charged large companies with managing risks to various public values and concerns. In this contribution, we critique this shared regulatory approach. First, we argue that regulating dominant corporations via risk management obligations actually reinforces their power in three ways: it is inherently deferential to corporate power and profitability; it reinforces technocratic framings of policy problems which discourage political contestation of economic governance; and it allows corporations to evade responsibility by framing negative impacts of their activities as external problems against which they protect the public. Second, these problem framings shape the implementation as well as the content of regulations. Specifically, they direct compliance and enforcement efforts to procedure over substance; and create significant practical barriers to public and private enforcement. We conclude by discussing the implications of our analysis in the context of the EU’s current deregulatory agenda.

This article examines the democratic control over the European Union’s unilateral trade policy. It takes as a starting point how crises like COVID-19 and geopolitical tensions have led to the “weaponisation” of trade, making global commerce unpredictable. The EU has responded by modernising its trade instruments, such as anti-dumping measures and new regulations like the Anti-Coercion Instrument. However, these instruments often allow the European Commission to act without parliamentary approval, challenging democratic accountability. The article questions whether a democratic, yet effective, unilateral trade policy is possible for the EU. It reviews the processes behind the EU’s unilateral trade policy, critiques current legitimacy mechanisms and proposes reforms to enhance democratic oversight. Ultimately, it argues that a degree of democratisation of trade policy is feasible without Treaty changes, contributing to broader discussions on maintaining democratic control over executive actions in crises.

This article examines the systemic risk management regimes introduced by the Digital Services Act (DSA) and the Artificial Intelligence Act (AI Act) through the lens of EU constitutional law. Under both frameworks, private actors assess and mitigate systemic risks to public and private interests, while the European Commission acts as the exclusive supervisory and enforcement authority. Drawing on the Meroni doctrine and the case law on Article 290 TFEU, the article argues that these regimes delegate political discretion – among others, the authority to make normative decisions about contested public values. It explores the boundaries of political discretion reserved to the legislature under primary EU law. Based on this analysis, the article demonstrates how vague legislative definitions and broad discretion in systemic risk management enable regulated entities and the European Commission to make political choices that should remain within the competence of the EU legislator. By scrutinising how systemic risk management may exceed permissible limits on the delegation of power, the article provides a framework for assessing the legality of this emerging regulatory model in EU digital legislation. It concludes with a call for empirical research and normative guidance on how systemic risk management should be conducted in practice.

Foundation models – models trained on broad data that can be adapted to a wide range of downstream tasks – can pose significant risks, ranging from intimate image abuse, cyberattacks, to bioterrorism. To reduce these risks, policymakers are starting to impose obligations on the developers of these models. However, downstream developers – actors who fine-tune or otherwise modify foundational models – can create or amplify risks by improving a model’s capabilities or compromising its safety features. This can make rules on upstream developers ineffective. One way to address this issue could be to impose direct obligations on downstream developers. However, since downstream developers are numerous, diverse, and rapidly growing in number, such direct regulation may be both practically challenging and stifling to innovation. A different approach would be to require upstream developers to mitigate downstream modification risks (e.g., by restricting what modifications can be made). Another approach would be to use alternative policy tools (e.g., clarifying how existing tort law applies to downstream developers or issuing voluntary guidance to help mitigate downstream modification risks). We expect that regulation on upstream developers to mitigate downstream modification risks will be necessary. Although further work is needed, regulation of downstream developers may also be warranted where they retain the ability to increase risk to an unacceptable level.

Over the past decade the European Union (EU) has transformed sustainability into a dense matrix of legally binding ESG reporting obligations for companies. Compliance increasingly hinges on firms’ ability to collect and verify thousands of datapoints deep into global supply chains – an exercise that is costly, error-prone and may yield non-comparable results. (Semi-)centralised ESG data-sharing arrangements – shared hubs where suppliers post one or more verified sets of sustainability figures that all their customers can reuse – can restore some efficiency by eliminating duplicate requests and supplying standardised, audit-ready inputs, but this amplifies competition-law risk. Drawing on competition law and policy and recent Dutch banking practice, the paper devises a set of legal “firewalls” and access rules that neutralise collusive potential resulting from the information exchange that takes place while safeguarding smaller market players from exclusion. These safeguards are essential to ensure that ESG data collaboration supports – not hinders – the EU’s Twin Transition towards a green and digital economy.

The global financial crisis exposed the sovereign-bank nexus as a driver of financial instability and an impediment to economic growth. Little attention has been paid to the interaction of banking regulation and public finance. This study analyzes the interaction between the prudential regulation of banks’ capital requirements and constitutional fiscal rules. We hypothesise that a conflict occurs between the regulatory privileged treatment of sovereign bonds held by banks and the market exposure logic enshrined in constitutional fiscal rules. This is particularly problematic in currency unions such as the US and the euro area. Our legal analysis builds on an empirical econometric assessment showing that peripheral euro area governments increase their debt following a tightening in macroprudential capital regulation, laying bare the undesired interaction between banking regulation and constitutional rules.

Energy has been a fundamental precondition for human survival, economic development, and preserving dignity throughout history. At the same time, the increasing digitalisation of energy systems, especially in the EU’s energy transition, creates new challenges, especially concerning rights such as data protection and privacy. Although European Law restricts the right to energy as a consumer right, it expressly recognises data protection and privacy as fundamental rights. This article outlines the theoretical, historical and legal foundations of the right to energy and analyses the implications of digitalisation for its realisation while also addressing emerging concerns about data protection and privacy rights. Furthermore, it identifies the tension points between the Recast Electricity Directive (RED) and the General Data Protection Regulation (GDPR) and provides recommendations for a legal framework that harmonises the abovementioned rights.