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The paper explores the evolution of private powers in the digital landscape, developing a quadrangular systematisation of such a phenomenon based on four main aspects: space, values, (private) actors, and (digital) constitutional remedies. Taking a trans‐Atlantic approach, the paper shows how these categories, typical of constitutionalism, apply to the context of the Internet and of new digital technologies both in the United States and in Europe. On the one hand, the United States has up to now maintained the supremacy of the notorious Section 230 of the Communications Decency Act. On the other hand, European legislation has undergone a significant change, moving from a phase of digital liberalism, of which the 2000 E‐Commerce Directive is the emblem, towards a new era of digital constitutionalism, passing through the age of judicial activism of European courts. In this sense, Europe has increasingly attempted to introduce limits to private (digital) powers, with a view to better protect and enforce (also horizontally) users' fundamental rights. Additionally, the evolution of digital constitutionalism, from a vertical‐sectoral approach to a horizontal and procedure‐based one, significantly showcased by the recent Digital Services Package, is underscored, signalling the recent movement of the EU into its second phase of digital constitutionalism. In this respect, the paper argues that the great benefit of stressing the procedural dimension, which may be defined as a European application of "due (data) process" to the relationship between individuals and private powers, is that it is potentially able to help consolidate a (necessary) trans‐Atlantic bridge. [ABSTRACT FROM AUTHOR]

This paper focuses on Habermas's notion of cosmopolitan democracy. Reconfiguring the basic ideas of democracy in postnational terms is inevitable if social and political integration is to succeed on a supranational level. In exploring Habermas's ideas, we draw on Rancière, whose thought stands in a complex relationship to Habermas. On the one hand, Rancière largely shares Habermas's diagnosis of the present. Both bemoan the erosion of the political caused by post‐democracy and censure the rise of right‐wing extremism in Western societies. On the other hand, and in contrast to Habermas, Rancière holds that these problems should be addressed not primarily by strengthening political institutions and reaching a consensus between conflicting parties, but by rethinking conflict and resistance. We show that Habermas's and Rancière's propositions can be productively brought in dialogue by focusing on the paradigmatic types of political subjectivity involved in their accounts: the citizen (Habermas) and the plebeian (Rancière). [ABSTRACT FROM AUTHOR]

The article focuses on the formation of public policy through private law in the European legal systems. Topics discussed include public policy of the Europe; challenges to European Union integration as a result of the financial and political crisis; and European Regulatory Private Law (ERPL) which focuses on regulation of economic activities and commercial importance.

This contribution assesses representation in the EU through the lens of demoicracy, focusing on how the demos and the demoi are represented and how this interacts with the executive‐legislative balance and party politics. As the Belgian polity is a living case for the EU but often as flawed as the latter when it comes to democratic standards of representation, we examine whether and how reform proposals for the Belgian polity can inspire future reforms at EU level. We demonstrate that the direction demoicracies should head for when strengthening democratic representation should include a balanced representation of the demos and demoi via a bicameral system, a polity‐wide constituency to represent the demos, involvement of the legislatives of the constituent units at the encompassing level, and a specific role for polity‐wide parties. [ABSTRACT FROM AUTHOR]

Discussions pertaining to advancing strategic policies and democracy in the EU cannot afford to disregard a fundamental institutional dilemma of the EU's political system, the conflict between intense interdependence and power sharing in a multilevel polity for one, and autonomy of governments as a condition for democratic legitimacy of power for another. Conceiving the EU as a federal democracy draws attention to this dilemma. This concept suggests democracy‐preserving modes of governance instead of coercive coordination (policy adjustment to competition in the common market, joint decision‐making among governments, central regulation by law and court decisions), which so far predominate in most relevant policy fields. It also calls for procedures to cope with issues of distributive justice stemming from territorial disparities in resources and burdens. The article conceptualises these challenges and outlines feasible steps to advance federal democracy in the EU. [ABSTRACT FROM AUTHOR]

Two opposing theories explain the European Central Bank's (ECB) far‐reaching powers: principal‐agent and trusteeship. This article situates both theories on a sliding scale of delegation, with agents on one end of the spectrum, and trustees on the other. Applying this new perspective to the European Stability Mechanism (ESM) allows us to understand how the ECB, positioned on the agent side of the scale by the ESM Treaty, slides towards the trustee side in practice. This way, the article identifies two problems. Firstly, the ECB assumes a 'zone of discretion' that is not captured by the control mechanisms, thereby disregarding an essential feature of delegation. Secondly, the rationale of the Meroni doctrine, judicial review, is disregarded given the insufficient protection against the ECB's actions. These findings become increasingly important with the long‐term aim to incorporate the ESM in the EU legal order. [ABSTRACT FROM AUTHOR]

Abstract: During the years of the financial crisis, ordoliberalism became the target of a European‐wide critical campaign. This school of thought is widely perceived as the ideational source of Germany's crisis politics, which has even led to an “ordoliberalisation of Europe”. This essay questions the validity of such assessments. It focuses on two aspects that are widely neglected in current debates. One is the importance of law in the ordoliberal vision of the ordering of economy and society. The second is its cultural and religious background, in particular in German Protestantism. The influence of the ordoliberal school on European law, so the essay argues, is overrated in all stages of the integration project. Anglo‐American neoliberalism rather than German ordoliberalism has been in the ideational driver's seat since the 1980s. In the responses to the financial crisis, the ordoliberal commitment to the rule of law gave way to discretionary emergency measures. While the foundational synthesis of economic and legal concepts became indefensible, the cultural underpinnings of the ordoliberal tradition survived and developed a life of their own, in particular in German political discourses. [ABSTRACT FROM AUTHOR]

'Cosmopolitan Europe', the normative commitment that is widely understood to undergird the project of the European Union, is under threat as never before. This is manifest perhaps most prominently in Europe's collective failure to respond to the refugee crisis. As people flee war and destruction, we, in Europe, debate whether now is the time to give up on our human rights commitments. France is under a state of emergency and the UK in the process of withdrawing from the European Union and its associated institutions (including the European Convention on Human Rights). Voices have been raised against the burdens, financial and social, placed upon us by those we see as Other, with few public voices calling for Europe to remember its traditions of hospitality and stated commitments to human rights. In this article, I discuss the growing distance between the claims and practices of European cosmopolitanism, its roots in our shared colonial past, and the implications for the future. [ABSTRACT FROM AUTHOR]

'Organised solidarity' of a mediated legal form constitutes the backbone of the modern welfare state built on solidarity between strangers. The interplay between the single market and the national social systems is key in defining who owes what to whom under the 'transnationalised' European solidarity. Free movement rights have increased the 'entanglement' of national social systems' revenue and expenditure sides, considered to jeopardise their steering capacity. As a corollary to free movement, transnational solidarity does not take place beyond or between national welfare states, but rather within: as solidarity with strangers. Here transnational solidarity is applied by way of a sociological framework to trace the evolutionary path of free movement of persons as it fluctuates between 'commodification' and 'decommodification'. Against that backdrop, this article reviews whether a paradigm shift is currently promoted as to the question where solidarity with strangers begins and ends. [ABSTRACT FROM AUTHOR]

The high numbers of over-indebtedness and of evictions in Europe since the financial crisis have highlighted the need to re-think the role that mortgage credit plays for societies. This contribution examines the social function of contract law, based on the observation that contract law is a means of allocating welfare in a political economy in which the welfare state is in retreat. The claim asserted in this article is that EU law in the field of mortgages does not fulfil its social function because it is based on a formalistic understanding of contract law. In order to close the protective gap brought about by a shift in the allocation of welfare from public provision to private markets without altering the understanding of contracts, the proposal is to follow the cooperative contract model of contracts as social cooperation. This approach allows for an assessment of fairness that acknowledges the long-term character of mortgage contracts and the ensuing need to distribute market risks between both contracting parties. [ABSTRACT FROM AUTHOR]

Despite the explicit exclusion of its jurisdiction, the Court of Justice of the European Union exercises judicial control over Common Foreign and Security Policy (CFSP). This article examines and explains how the Court's extended jurisdiction contributes to the juridification, judicialisation and constitutionalisation of the EU's compound CFSP structures. It first lays the groundwork by explaining the link between constitutionalisation and democratic legitimation and setting out the Court's formal jurisdiction over CFSP under Article 40 Treaty on European Union and Articles 218(11) and 275(2) Treaty on the Functioning of the European Union. The centre piece of the article then identifies how the Court's jurisdiction has expanded since the entry into force of the Lisbon Treaty, points at additional 'substantive' avenues of judicial review on the basis of access to information and access to justice, and analyses the effects of the Court of Justice of the European Union's extended jurisdiction for CFSP. [ABSTRACT FROM AUTHOR]

The article focuses on the migration crisis of Europe in 2015 with the symptom of the structural crisis of European Integration and ambivalence of the normative commitment to asylum. It mentions that asymmetric integration of asylum policy in Europe with economic integration and the approach of European Union Court of Justice (CJEU). It also mentions that second wave of supranational emergency measures with patrolling with the help of North Atlantic Treaty Organization (NATO).

The reaction to 11 September damaged the liberty of those living in Europe who found themselves targeted as suspect terrorists while seeming to do little to ensure the security of the wider community. More recently a second emergency, rooted this time in the financial and economic collapse of 2008 onwards, has caused a further unravelling of Europe's constitutional project, even threatening the gains of past generations of European idealists. In today's Europe universal liberty and security have no meaning for many even if their shape is retained in structures that in truth mock rather than deliver democracy and human rights. This article traces the origins of the crises that have afflicted so directly the breadth of liberty and human security in the Union, demonstrating their roots in 'viruses' that have been present from the start of the European movement but which have now spiralled out of control. The essay ends by asking what can be done to prevent the full decline of the region into a state of neo-democratic/post-democratic unfreedom, one in which capital unbound from democracy thrives at the expense of the people. [ABSTRACT FROM AUTHOR]

From a social-market perspective, European integration has reduced the capacity of democratic politics to deal with the challenges of global capitalism, and it has contributed to rising social inequality. The article summarises the institutional asymmetries which have done most to constrain democratic political choices and to shift the balance between capital, labour and the state: the priority of negative over positive integration and of monetary integration over political and social integration. It will then explain why efforts to democratise European politics will not be able to overcome these asymmetries and why politically feasible reforms will not be able to remove them. On the speculative assumption that the aftermath of a deep crisis might indeed create the window of opportunity for a political re-foundation of European integration, the concluding section will outline institutional ground rules that might facilitate democratic political action at both European and national levels. [ABSTRACT FROM AUTHOR]

Can the process of European unification lead to a form of democracy that is at once supranational and situated above the organisational level of a state? The supranational federation should be constructed in such a way that the heterarchical relationship between the Member States and the federation remains intact. The author finds the basis for such an order in the idea of the EU constituted by a 'doubled' sovereign-the European citizens and the European peoples (the States). In order to sustain such an order, reforms of the existing European treaties are needed. It is necessary to eliminate the legitimation deficits of the EU in a future Euro- Union-that is, a more closely integrated core Europe. The European Parliament would have to gain the right to take legislative initiatives, and the so-called 'ordinary legislative procedure', which requires the approval of both chambers, would have to be extended to all policy fields. [ABSTRACT FROM AUTHOR]

This essay tentatively buttresses Alexander Somek's view that Hermann Heller's 1933 essay, ' Authoritarian Liberalism', provides a useful starting point for thinking about the ongoing European crisis, in which European authorities are favouring rigid austerity and pro-business policies while undermining basic liberal and democratic rights. Heller's unfortunate neglect, especially in Anglophone scholarship, is discussed. Nonetheless, Somek and other recent scholars who have turned to Heller to make sense of the European crisis downplay some of the tough questions raised by any attempt to apply Heller's analysis of the Weimar crisis to the contemporary setting. In particular, Heller's theory relied on a robust social democratic statism which has become increasingly unpopular even among theorists on the political left. [ABSTRACT FROM AUTHOR]

In light of the reforms undertaken for the sake of the Euro, the article revisits the concept authoritarian liberalism that was introduced in 1933 by the German public law scholar Hermann Heller. This notion seeks to capture the liaison between the 'strong state' and economic liberalism. The article suggests that this notion can be fruitfully used to designate the new governance of economic and monetary union. It argues, particularly, that it makes sense to speak of an authoritarian style of governance even if the latter does not wear vestiges of outright repression. Two different faces of authoritarian liberalism can be distinguished: one that looks more towards authoritarianism and another one that views authoritarian rule as a managerial strategy that is good for the economy. The article then speculates whether the EU has been, indeed, successful because it shifts between the two. Disturbingly, there may be something deeply as well as more accidentally authoritarian about European integration. [ABSTRACT FROM AUTHOR]

The current crisis in Europe recalls the theory and practice of authoritarian liberalism, the idea that in order to protect economic liberalism and respect for fiscal discipline, representative democracy must be curtailed. This configuration was first identified by Hermann Heller in late Weimar as a response to the imperative to maintain the ideological separation of state and economy and presented by Karl Polanyi as conditioned by broader geo-political pressure to maintain the gold standard in the inter-war period. Authoritarian liberalism is now conditioned by conflicting imperatives to maintain the project of the single currency, respect ordo-liberal concerns of moral hazard, and protect 'militant democracy' but only in one country. Does this reflect a broader geo-political disequilibrium, due to tensions between market integration, constitutionalism and democracy? [ABSTRACT FROM AUTHOR]