How has the European Union been integrated in the past? Legal academics have traditionally pointed to the Court of Justice and to the broader idea of an ‘integration-through-law’. Through its supranational jurisprudence, the Court – not the EU legislature – was thus placed at the centre of the European integration project. The underlying reasons for this dominance of constitutional ‘law’ over legislative ‘politics’ have thereby been the subject of three famous explanations: the ‘equilibrium theory’ (Weiler), the ‘asymmetry theory’ (Scharpf) and the ‘over-constitutionalisation theory’ (Grimm). What are the merits of these grand theories of European integration when measured against the historical record? This article hopes to explore this question in the context of the internal market. Its historical revision begins with an analysis of the respective spheres of normative and decisional supranationalism during and after a foundational period (Sections 2 and 3). This is followed by an examination of the meaning and significance of the Cassis de Dijon judgment in the late 1970s. Through this revolutionary case, a dialectical relationship between the EU Court (‘law’) and the EU legislator (‘politics’) emerges (Section 4) that ultimately leads to the spectacular rise of EU legislation (Section 5) after the SEA. This transformational relationship will provide the critical lens for a historical revaluation of the three grand theories of legal integration (Section 6).

In this paper we identify and discuss three different strategies for taking up intersectionality in the space of European private law, ie, liberal ideal theories of social and private law justice, liberal nonideal theories of reparation, and private law abolition. While we caution for how intersectionality is taken up in the European space of private law, these strategies yield insights about how intersectionality may recast (European) private law’s role as a potential site to advance, or thwart, pursuits of justice. The three strategies imply (potentially radical) shifts in how legal scholars may understand private law justice. We suggest that (European) private law abolition might be the most promising starting point to think intersectionality’s significance for recasting dominant understandings of private law’s relation to (in)justice in the EU context.

The EU’s 2022 Digital Services Act (DSA) requires large online platforms to assess and mitigate risks to various vaguely-defined and contestable values, including fundamental rights; public health and security; civic discourse; and people’s mental and physical wellbeing. The scope of these provisions is thus incredibly broad and they have unsurprisingly attracted significant academic interest. So far, most scholarship has taken a broadly functionalist approach: it accepts the basic premise that certain social impacts of platforms constitute risks which must be managed, and evaluates the DSA’s capacity to achieve this ‘effectively’.

In contrast, this article aims to step back and critically reflect on the underlying conceptual and institutional framework of systemic risk management, based on an explicitly social constructionist understanding of risk as a technology of governance shaped by competing political agendas. Drawing on critical literature on risk regulation from various disciplines and regulatory fields, it identifies two key themes. First, discursively framing political problems as risks tends to exclude issues less amenable to the ‘risk’ framing; to privilege technocratic expertise; and to depoliticise distributive and ideological conflicts. Second, the DSA’s institutional approach to risk regulation delegates primary responsibility for identifying and managing risks to regulated companies, creating well-documented risks of capture. Overall, both themes point to similar conclusions: the systemic risk framework will be highly favourable to the interests of the powerful multinational corporations it seeks to regulate.

In conclusion, however, the article notes that platform regulation may pose distinctive challenges that are not well illuminated by scholarship on risk regulation in other fields – notably because of the widely-recognised possibilities for political abuse of more prescriptive regulation of online media. It suggests some avenues for further research into risk politics in the specific context of online media platforms, in particular drawing on scholarship on risk management in critical security studies.

Many legal scholars and practitioners consider the German judiciary to be a reliable and cooperative interlocutor of the Court of Justice. German judges refer more and more constructive references than their peers in other Member States – or so the prevailing narrative runs. The present study seeks to dispel and correct this image as reference champion. It identifies three challenges to the preliminary reference procedure in German courtrooms: a complex procedural framework restricting the discretion and obfuscating the duty to refer (1), a reluctant judiciary (2), and instrumental uses as a tool of judicial contestation (3). The study proceeds in four steps. Starting from a doctrinal perspective, it sketches the intricacies of the German procedural framework and analyses how it may obstruct preliminary references. Taking a quantitative perspective, it places German references in relation to other indicators, such as population size, incoming cases, or the number of judges. Under such a lens, Germany finds itself at the lower end of the spectrum. This reluctance can be traced back to a bundle of factors, such as judicial hierarchies, workload, or lack of knowledge and trust. Shifting to a qualitative perspective, the study then explores the instrumental uses of references as a tool of judicial contestation, both externally regarding the EU and internally regarding the German judicial architecture. The study concludes by focusing on a new actor in the reference game – the federal constitutional court. Its two senates have approached the preliminary reference procedure with diametrically opposed logics: the second senate underlines the power of the last, the first senate the potential of the first word. It remains to be seen whether the first senate will carry the day and herald – as a model for the entire German judiciary – a more cooperative future for the preliminary reference procedure.

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.

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.

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.

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.

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.

Constitutional imaginaries are internal symbolic constructs of self-constituted positive law and politics which make it possible to imagine and describe functionally differentiated modern society as one polity and distinguish between legal and political legitimacies and illegitimacies in this polity. Imaginaries, therefore, are not limited by the unity of topos-ethnos-nomos and evolve in national as well as supranational and transnational constitutions. In the context of European constitutionalism, general imaginaries of the common market, universal rights and democratic power are thus accompanied by specific imaginaries of European integration through legal pluralism, administrative rationality of calculemus, economic imperium of prosperity and democratically mobilised non-state community. These imaginaries invite constitutional theorists to rethink the juridical concept of constitution and employ sociological and social theoretical perspectives of constitutionalism within and beyond the state. In their specific ways, these imaginaries, which obviously can be detected at national levels but play a particularly important role at transnational levels of European integration, represent the paradox of modern society constituting its unity as difference, yet preserving its imaginary capacity to describe such differentiation as unity. Like any other society, European society thus represents its collective self to itself only through the specific imaginaries spontaneously constituted by its different systems.

In current debates on the constitutional imaginary, different dimensions are stressed in distinct contributions, ranging from philosophical and legal–theoretical, to sociological and socio–legal approaches. To situate Jiří Přibáň’s work in this larger scheme of reflection on the imaginary, this article identifies a number of core angles. Unlike Přibáň’s systems theoretical interpretation of imaginaries, Castoriadis’s philosophy of creative imagination puts emphasis on uniqueness, on historical creation ex nihilo, or the creation of worlds without a precedent in the existing world and without presuming any clear function. This also means that imaginaries relate to forms of meaning that cannot be reduced to binaries, codes, or structural languages (legitimacy – illegitimacy) that keep society together, but rather relate to meaning that can never be fully articulated or theoretically entirely grasped and explained. However, Přibáň does not ultimately fully reduce constitutional imaginaries to functional vehicles as becomes clear in his acknowledgement of the polysemy and polyvalence of functionally differentiated society. From this perspective, the contemporary populist challenge to constitutionalism appears to be based on a struggle between technocratic forces promoting a modern, legal–rational imaginary of constitutionalism, whereas populist forces endorse a constitutional imaginary that is grounded in traditionalism and authenticity. This counter-constitutional populist challenge is not merely about a rejection of liberal democratic orders but regards the questioning of the rational–scientific imagination as such.

In this contribution we ask how Přibáň’s theoretical choices shape the capacity of ‘European constitutional imaginaries’ to account for the ever more necessary work of recognition and redistribution within European society. While ‘European constitutional imaginaries’ reveal the intricate ideologies at play within European law and politics, as well as their power in motivating dominant currents of European political life, the project remains limited in that it accepts essential tenets of functional differentiation in society, obscuring the conditions of possibility for the formation of differentiated systems. Put differently, ‘European constitutional imaginaries’, both as forms of life and analytic concepts, have difficulty in conceiving the frontiers of imaginaries, their beginning and end, their formation and transformation—and in so doing, risk naturalizing their initial differentiation as a priori excluded from political contestation.

Jiří Přibáň’s work deals with constitutional imaginaries, starting from the concept of social imaginaries as entities describing functionally differentiated modern society as one polity. Přibáň’s conception perceives constitutional imaginaries in terms of social systems, representing a socio-legal paradox, since constitutional imaginaries express both the constitution of social unity and its pluralism of values. The aim of this contribution is to explore the link between Přibáň’s work and some aspects of Luhmann and Teubner’s contributions to the theory of social systems. By highlighting these features, the Author tries to argue that contemporary imaginaries can work as constitutional forces that drive contemporary legal pluralistic regimes, including the European one, to the societal unity by warranting a systemic difference.

All discussants of this book symposium on the monograph Constitutional Imaginaries address different aspects of constitutionalism beyond national and international limits and engage with the concepts of transnational law and global society to test and contest the book’s central argument according to which specific European constitutional imaginaries are internally constituted by different social systems and therefore paradoxically represent the unity of European society through their specific semantics. In this rejoinder, I focus on some overlapping themes, namely the process of social differentiation, its impact on both social and legal pluralism, and the paradox of legitimation in societal constitutionalism to respond to their comments and criticisms.