# European society and its law: EU law in light of social theory

Loïc Azoulai

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Loïc Azoulai. European society and its law: EU law in light of social theory. European Law Open, 2025, pp.1-28. 10.1017/elo.2025.10039. hal-05418364

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# European society and its law: EU law in light of social theory

Loïc Azoulai<fnref n="1" />,<fnref n="2" />

¹European University Institute, Florence, Italy and ²Sciences Po, Paris, France

Email: loic.azoulai@eui.eu

(Received 27 April 2025; revised 5 August 2025; accepted 19 September 2025)

## Abstract

European studies have traditionally relied on the power of broad concepts to account for the experience of the European Union: be it integration, governance, market, or legal order. Many of these concepts originated in social sciences. Yet, one concept is conspicuously absent from this list: 'society' was seen as ill-suited for picturing European integration. This background makes the recent and pervasive return of the term 'society' in the EU institutional discourse even more apparent. The paper attempts to propose a framework within which to think of the EU and its law in terms of European society makes sense. First, it argues that this turn to society is a response to challenges posed to the core assumptions upon which EU law has been predicated. Secondly, it inquiries about the sort of society produced by the law of European society. Thirdly, it suggests a new development for EU law and EU legal studies, integrating in their technical and conceptual apparatuses additional resources and critical knowledge drawn from social sciences and social theory.

**Keywords:** European union law; European society; social theory; social reproduction; identification; recognition; critique

## 1. From the social to society

European studies have traditionally relied on the power of broad concepts to account for European integration. Such concepts, many of which originated in social sciences, were adjusted to capture the special meaning of supranational Europe: examples are integration itself, turned into 'European integration';<fnref n="1" /> power, used to describe Europe as a 'normative power';<fnref n="2" /> market, inserted into the overarching reference to 'Common/Internal Market';<fnref n="3" /> but also legal order, with Europe and its law defined as a 'new legal order'.<fnref n="4" /> These concepts have helped scholars as well as actors of supranational Europe to unlock and communicate the meaning of the disparate practices that developed behind this unprecedented institutional experience. One concept is conspicuously absent from this list. 'Society' was seen as ill-suited for picturing European integration.<fnref n="5" /> This is

<footnote n="1">¹TO Hüglin, 'Scarcity and Centralization: The Concept of European Integration' 4 (1983) International Political Sciences Review 345–60.</footnote>

<footnote n="2">²I Manners, 'Normative Power Europe: A Contradiction in Terms extremely?' 40 (2002) Journal of Common Market Studies 235–58.</footnote>

<footnote n="3">³J Rueff, 'Institutions et Marché Commun dans le Traité de la Communauté Européenne du Charbon et de l'Acier' in Rueff, *Œuvres complètes III. Politique économique Vol. 1* (Plon 1979) 317–29</footnote>

<footnote n="4">⁴G Itzcovich, 'Ordinamento giuridico, pluralismo giuridico, principi fondamentali. L'Europa e il suo diritto in tre concetti' 1 (2009) 1 *Diritto Pubblico Comparato ed Europeo* 34–60.</footnote>

<footnote n="5">⁵See, however, for some discrete references: A Martinelli and A Cavalli, *European Society* (Brill 2020); G Delanty and C Rumford, *Rethinking Europe. Social Theory and the Implications of Europeanization* (Routledge 2005); R Münch, 'Constructing a European Society by Jurisdiction' 15 (2008) European Law Journal 519–41; J Delhey, 'European Social</footnote>
comprehensible enough. From the outset, it was clear to the actors and observers of European integration that some of the material bases for a conceptualisation of Europe as a unified social whole were missing. Arguably, there has hardly ever been any widespread form of personal identification with Europe as a whole, a full-fledged structured European division of labour, an all-encompassing system of fiscal redistribution, or a dense field of political, cultural and social interaction among social groups at the European level.<fnref n="6" /> The point of European integration was precisely to build a new institutional and socio-economic order that could persist without the support of a pre-existing European cultural and social system.<fnref n="7" /> In 2006, in response to the question 'Is there, or can there be, a "European society?"', Claus Offe gave a clear answer: 'Europe is not a state and hence not a society'.<fnref n="8" /> Ten years later, Damian Chalmers echoed: the EU is a functional organisation as a result of which 'there is also no EU legal vision of collective being as a social form, a notion of society'.<fnref n="9" />

Yet, the reference to the ‘social’ was an essential feature of the European project: postwar Europe was marked not just by the setting in place of a common market and new structures of peaceful coexistence among European states, but also with a concern for the social modes of existence of Europeans.<fnref n="10" /> Indeed, European integration was, from the start, a means of ‘assisting through the expansion of basic production {of Member States} in raising the standard of living’.<fnref n="11" /> Social existences featured under concerns for the ‘standard of living’ and ‘working conditions’ of Member States’ nationals. Within the European Communities, ‘Social Europe’ began as ‘a means of securing market integration’.<fnref n="12" /> It originally encompassed free movement of workers, gender equality with a focus on equal pay at work, health and safety in the workplace and worker protection in business restructuring. It then developed, as the internal market deepened, as a broader form of social and risk regulation.<fnref n="13" /> In the EU, the ‘social’ denotes a set of norms, principles, and legal frameworks aimed at regulating a market space on a transnational level, by correcting its failures in terms of information and participation in the market.<fnref n="14" /> As such, it is not concerned with society, understood as a field of social practices, interactions and relationships between individuals and social groups, which is fraught with instances of conflict and cooperation.<fnref n="15" /> Embedded into a ‘social market economy’ and then partly absorbed by Economic and Monetary Union,<fnref n="16" /> EU law has, in fact, been characterised by a disregard for social practices

<footnote>Integration. From convergence of countries to transnational relations between peoples' WZB Discussion Paper No. SP I 2004-201, February 2004.</footnote>

<footnote n="6">⁶See C Hugrée, E Penissat and A Spire, *Social Class in Europe. New Inequalities in the Old World* (Verso Books 2000); M Plouviez, ‘Société européenne et Europe sociale. Perspectives durkheimiennes’ 27 (2023) Durkheimian Studies 64–86.</footnote>

<footnote n="7">⁷EB Haas, *The Uniting of Europe. Political, Social and Economic Forces 1950–1957* (Notre Dame 1958); LN Lindberg, ‘Political Integration as a Multidimensional Phenomenon’ 24 (1970) International Organization 648–731.</footnote>

<footnote n="8">⁸C Offe, ‘Is There, or Can There Be, a “European Society”?’ in J Keane (ed), *Civil Society: Berlin Perspectives*, (Bergha Books 2006) 169.</footnote>

<footnote n="9">⁹D Chalmers, ‘The Unconfined Power of European Union Law’ 2 (2016) European Papers 416.</footnote>

<footnote n="10">¹⁰T Judt, *Postwar: A History of Europe Since 1945* (Vintage 2010).</footnote>

<footnote n="11">¹¹ECSC Treaty 1951, Preamble.</footnote>

<footnote n="12">¹²European Commission, *The EU social acquis*, SWD (2016) 50 final, 8 March 2016.</footnote>

<footnote n="13">¹³G Majone, ‘The European Community between social policy and social regulation’ (1992) EUI Working Paper; M Weimer and A De Ruijter (eds), *Regulating Risks in the European Union: The Co-production of Experts and Executive Power* (Hart 2017).</footnote>

<footnote n="14">¹⁴H Micklitz, ‘Society, Private Law and Economic Constitution in the EU’ in G Grégoire and X Miny (eds), *The Idea of Economic Constitution in Europe: Genealogy and Overview* (Brill/Nijhoff 2022) 380–424.</footnote>

<footnote n="15">¹⁵F Fischbach, *Le sens du social. Les puissances de la coopération* (Lux Editeur 2015).</footnote>

<footnote n="16">¹⁶F De Witte, ‘The Architecture of a “Social Market Economy”’ LSE Working Papers 13/2015; AC Hartzén, A Iossa and E Karageorgiou (eds), *Law, Solidarity and the Limits of Social Europe. Constitutional Tensions for EU Integration* (Edgar 2022); C Kilpatrick, ‘The displacement of Social Europe: a productive lens of inquiry’ 14 (2018) European Constitutional Law Review 62–74.</footnote>
and local conflicts.<fnref n="17" /> It has even been said that European law was an endeavour to obfuscate the element of struggle inherent in society.<fnref n="18" />

This background makes the current shift that occurs in the discourse of EU institutions even more apparent. References to society have become pervasive in recent years.<fnref n="19" /> This concept is usually invoked in connection to problems perceived as threatening, due to their magnitude and combined character, the basic material and moral conditions for the reproduction of Europe's national societies.<fnref n="20" /> These problems are linked to major disruptive events, whether crises or catastrophes, such as climate change, the Covid pandemic, or the return of war on the continent. Equally significant catalysts include the digital revolution, the rise of illiberal forms of populism, the panic of public opinion – largely instrumentalised by a part of the political class – over the arrivals of migrants and the place of Muslims in society. Another recent key driver is the transformation of the international economic order characterised by fragmentation and weaponisation of trade and external policies. In the context of these events, the European Commission rhetorically appeals to the notion of European society. On the one hand, it has stated that it is 'determined to be a front-runner in the transition towards a climate-neutral society' as well as to establish a 'digital society, based on European values and European rules'. On the other hand, the Commission is adamant that the anti-LGBTIQ+ law recently enacted in Hungary is 'a frontal and serious attack on the rule of law, and more generally on European society'. The first series of statements refers to the fact that the EU is committed to protecting the critical ecological, technological and social systems upon which the reproduction of society depends. The second refers to the way in which Europeans are required to understand themselves as living in a liberal democracy. In other words, European society is about the protection of the 'seen but unnoticed background of everyday life', ie, both its material bases and normative foundations.<fnref n="21" /> The notion is mobilised by EU institutions with the aim of ensuring that Europe's institutional and social patterns of relationships remain stable, governable and cohesive. This is clearly an attempt to legitimate EU authority.

This discursive shift has been given a legal form. It has translated into the confection of broad systems of rules such as the *European Green Deal*, *NextGenerationEU*, the *Pact on Migration and Asylum*, the *Digital Services Act*, *Digital Markets Act* and *AI Act*, the *Strategic Autonomy* rules or the *European Pillar of Social Rights* acquis.<fnref n="22" /> These bundles of rules compose what might be called the 'law of European society', characterised by three main features. First, it develops in areas that were once deemed to remain outside the realm of EU competence.<fnref n="23" /> These areas relate to ecosystems (eg, soils, forests, fauna and flora), social systems (eg, energy, communications, security, healthcare), and basic patterns of social interaction (eg, migration, work, religion). Second, it relies on a set of techniques, whether it is planning, funding, ruling, conditionality, knowledge production (ie, expertise, risk assessments) or joint purchasing mechanisms that are

<footnote n="17">¹⁷L Azoulai, ‘Le sens du social dans le droit de l’Union européenne’ in S Barbou des Places, E Pataut and P Rodière (dir.), *Les frontières de l’Europe sociale* (Pedone 2019) 265–80.</footnote>

<footnote n="18">¹⁸M Dani, ‘Rehabilitating Social Conflicts in European Public Law’ 18 (2012) European Law Journal 621–43; A Somek, ‘The Social Question in a Transnational Context’ LEQS Paper No 39/2011.</footnote>

<footnote n="19">¹⁹N Graaf, ‘The Rise of Republican Society in EU Legal Acts (1970–2024)’ (2025) unpublished.</footnote>

<footnote n="20">²⁰On the concept of reproduction for Europe’s today context, see E Balibar, ‘Reproductions: une généalogie’ 70 (2021) *Actuel Marx* 12–29.</footnote>

<footnote n="21">²¹T Scheffer, ‘Responding before responseability: the delayed realisation of climate change as discrepant discourse formation’ 12 (2024) London Review of International Law 335, citing Morton, *Hyperobjects. Philosophy and Ecology after the End of the World* (University of Minnesota Press 2013) 27.</footnote>

<footnote n="22">²²On the ‘Social Rights acquis’, see C Kilpatrick, ‘The Roaring 20s for Social Europe’ 29 (2023) Transfer: European Review of Labour and Research 203–17.</footnote>

<footnote n="23">²³These are areas labelled as ‘key political matters concerning the sphere of personal development and the social design of living conditions’ by the German Constitutional Court in its Lisbon ruling, which it deems to be excluded from the EU remit (BVerfG, 2 BvE 2/08 of 30 June 2009) para 251.</footnote>
not new but are combined in such a way as to give rise to ‘institutional variation’, and potentially to a new constitutional arrangement.<fnref n="24" /> Third, this amounts to a regulatory model that reintroduces ‘*the question of social value*’ into the development of EU law.<fnref n="25" />

Such a regulatory model does not make full sense in the narrow terms of market and inner market failures in which EU law has been usually approached.<fnref n="26" /> Indeed, it is not merely about setting limits to markets or integrating non-market aims into internal market law.<fnref n="27" /> Rather it consists in a form of instrumentalisation of the internal market with a view to achieving public purposes. The law of European society is concerned with steering economic and social activities towards the achievement of a set of political objectives (climate neutrality, strategic autonomy), while subjecting them to the respect for specific political and legal values (the rule of law, fundamental rights, pluralism) and responding to the risks these activities entail for vulnerable social groups, as reflected in the terms ‘just transition’ and ‘social risks’.<fnref n="28" /> While not introducing new objectives and values, the law of European society reconfigures them in a specific way. As Kampourakis puts it: ‘*this corresponds to a reconfiguration rather than an overhaul of the political economy of the Union*’.<fnref n="29" />

Notably, this reconfiguration is far from being stable. It is contested and gives rise to various forms of resistance. It is subject to critique and ‘backlash’ both within Member States and the European institutions themselves. Moreover, the very concept on which this model is based, ie, ‘society’ or ‘social totality’, is being challenged by the very issues it is meant to address: climate change undermines the notion of a human-based society;<fnref n="30" /> the digital transformation destabilises the traditional notion of social interaction;<fnref n="31" /> the rule of law and democratic backsliding in some Member States defies the idea of an overall normative agreement at the foundations of European society.<fnref n="32" /> One might think that there are other concepts that are less problematic than society to frame the current challenges in the EU, such as the ‘planetary’, ‘earth’, or ‘empire’.<fnref n="33" /> Each of these notions carries its own set of problems. And yet, I maintain that it still makes sense to propose a framework accounting for Europe and its law in terms of European society. This is not just because, as recalled by Orford citing McKenzie, ‘*we need to subject the language of the times to its*’

<footnote n="24">²⁴B De Witte, ‘Euro Crisis Responses and the EU Legal Order: Increased Institutional Variation or Constitutional Mutation?’ 11 (2015) European Constitutional Law Review 434–57.</footnote>

<footnote n="25">²⁵I Kampourakis, ‘A Post-Neoliberal European Order? Public Purpose and Private Accumulation in Green Industrial Policy’ 88 (2025) The Modern Law Review 769–803. See also E Chiti, ‘Managing the ecological transition in the EU: The European Green Deal as a regulatory process’ 59 (2022) Common Market Law Review 19–48.</footnote>

<footnote n="26">²⁶On the framing in the EU and its law in the terms of market and market failures, M Höpner and A Schäfer, ‘Embeddedness and Regional Integration: Waiting for Polanyi in a Hayekian Setting’ 66 (2012) International Organization 429. See also J Mulder, ‘Responsive Adjudication and the “Social Legitimacy” of the Internal Market’ 22 (2016) European Law Journal 597–620.</footnote>

<footnote n="27">²⁷B De Witte, ‘A Competence to Protect: The Pursuit of Non-Market Aims through Internal Market Legislation’ in P Syrpis (ed), *The Judiciary, the Legislature and the EU Internal Market* (Cambridge University Press 2011), 25–46.</footnote>

<footnote n="28">²⁸On social risks in the context of AI, M Correia de Carvalho, ‘It will be what we want it to be: sociotechnical and contested systemic risk at the core of the EU’s regulation of platforms’ AI systems’ 16 (2025) Journal of Intellectual Property, Information Technology and Electronic Commerce Law 35–72.</footnote>

<footnote n="29">²⁹Kampourakis, *supra* note 25 at 803. As a result, it might be said that the EU finds itself equipped with attributes that Goldoni and Wilkinson associate to the concept of ‘material constitution’: political unity, a set of institutions, a network of social relationships, and a set of fundamental political objectives. However, it should be noted that, for these authors, the material constitution is not just a substantive construction but also a theory that offers a critical account of polities. Ironically, but tellingly, as it often happens in history, a method is turned into substance, against the critical aims originally assigned to the method: M Goldoni and MA Wilkinson, ‘The Material Constitution’ 81 (2018) The Modern Law Review 567–97.</footnote>

<footnote n="30">³⁰K Block, ‘The Anthropocene as a challenge for sociological thinking in planetary dimensions’ 153 (2022) Journal of the Geographical Society of Berlin 188–97.</footnote>

<footnote n="31">³¹M Fourcade and K Healy, *The Ordinal Society* (Harvard University Press 2024).</footnote>

<footnote n="32">³²T Koncewicz, ‘The Politics of Resentment and First principles in the European Court of Justice’ in F Bignami (ed.), *EU law in Populist Times: Crises and Prospects* (Cambridge University Press 2020) 455–76.</footnote>

<footnote n="33">³³B Latour, ‘Is Europe’s soil changing beneath our feet?’ Working Paper (June 2022); E Balibar, ‘Géométries de l’impérialisme au XXIe siècle’ Analyse Opinion Critique (November 2024).</footnote>
own critical pressure'.<fnref n="34" /> It is also because the concept of society belongs to the domain of social theory, which can furnish a critical perspective on the world that the discourse of European society promises to deliver.<fnref n="35" />

I should like to use the critical potential enshrined in social theory to assess and critique the institutional concept of European society. In other words, I propose to turn the concept into method. European studies have long been concerned with questions pertaining to political theory, ie, questions concerning forms of power and the relationships between institutions and individuals in a given polity. These remain, of course, important questions to pose to assess the recent development of the EU. But looking at European law through the critical prism of society should allow us to emphasise other important considerations relating to the ways in which social groups and individuals interact with each other, how each of them relates to their own conditions of existence, and how these groups could live together. Social theory is a vast field.<fnref n="36" /> I will refer to it selectively and in an instrumental way, in order to identify the governance and social structures set up by the EU in various sectors and analyse the social pathologies they may give rise to.

The argument within which I will place this analysis has three dimensions. Part II suggests that the discourse of European society and its legal embodiment is a response to external challenges affecting the core assumptions upon which the EU and its law have been built. Part III wonders about the kind of society thus produced by European law. It explores three major problems resulting from this development. The first refers to the satisfaction of basic needs essential for the reproduction of decent conditions of living. The second relates to the ability of Europeans to identify with others' condition and to account for otherness. The third concerns the recognition of minority groups and singular individuals in society. Analysing these problems requires different concepts than those conventionally used in EU law. It is there that social theory helps. In Part IV, it will appear plainly that the main issue with the way in which the EU law deals with these problems is that it tends to reduce complex social practices and singular conditions of existence to standardised institutional practices and knowledge. Asking how EU lawyers should think then about the law of European society, I thus suggest that this requires enriching the technical and conceptual repertoire of EU law on the basis of social theory and social sciences.

## 2. The law of European Society

What makes the concept of European society so attractive in Europe today? European society is the result of a discursive formation used in order to structure the conversation about Europe, create a renewed sense of belonging and justify the development of a new regulatory model. But I start with the hypothesis that there may be more to it: even if in the most inchoate terms, the signifier 'European society' is a response to challenges posed to core assumptions upon which the EU and its law have been predicated. These challenges refer to a sense of finitude of the European project, of friability of its legal authority and of fragility of its legitimacy basis. Whether these challenges are real or mostly perceived is a question that goes beyond the scope of this article. My account of the turn to European society is more descriptive than explanatory. I am mostly interested in attempting to make sense of it and in analysing its implications. The essential meaning of this turn is conceptual. It is to respond to cracks in the conceptual foundations of European integration. In this response lies a promise: that of recovering stability and cohesion in social interactions, in a context of major disruptive events.<fnref n="37" />

<footnote n="34">³⁴A Orford, 'How to Think About the Battle for the State at the WTO' 24 (2023) German Law Journal 45, 68. The reference goes to McKenzie, *Capital is Dead. Is this Something Worse?* (Verso 2019).</footnote>

<footnote n="35">³⁵P Neuvonen, 'A way of critique: What can EU law scholars learn from critical theory?' 1 (2022) European Law Open 60–88.</footnote>

<footnote n="36">³⁶See P Kivisto, *The Cambridge Handbook of Social Theory. Vol. II & Vol. II* (Cambridge University Press 2020, 2021).</footnote>

<footnote n="37">³⁷A von Bodgandy, 'On Meaning and Promise of European Society' (2025) European Law Open.</footnote>
## A. European construct

Perhaps the best way to enter the conceptual world of European integration is to return to an old statement produced in 1965 by Roger-Michel Chevallier, who was then acting as référendaire at the European Court of Justice.<fnref n="38" /> When invited to take part in the then vivid debate about the methods of interpretation of the Court of Justice, he wrote the following:

> I think that the key to all this is to be found in the simple fact that the Court [...], instead of confining itself to noting in a mechanical way the wishes of the authors of the Treaties, seems now to consider the Common Market as a fact, of the existence of which it takes judicial notice and from which observation it draws the necessary consequences. Henceforth, it will be seeking less the 'effectiveness' of the Treaties in the ordinary meaning of the term, i.e., those stages through which it is proper to pass in order to achieve an aim, and which the authors of the Treaty certainly foresaw and allowed for, than the necessary consequences of this aim considered as settled.<fnref n="39" />

In this extract lies an original conception of law's effectiveness. Interpreting European law is not just a matter of assigning a meaning to a norm in view of ensuring its useful effect. It is also about positing a massive institutional fact, ie, the Common Market, and then striving to make it real. The 'Common Market' is something to be postulated and constructed, rather than given and recognised. Thus, EC/EU law is conceived as a set of rules of construction. Free movement rules have been central to this construction: they confer a legal form on economic transactions and social interactions that develop at the intersection of different domestic orders, and which each of these orders, considered in isolation, is not equipped jurisdictionally or prepared politically to recognise. Their way of operating is not to build a brand-new reality but to displace acquired positions of certain economic or social actors on domestic markets and to carve up a new distribution of roles and powers compatible with the establishment of the internal market. Free movement rules aim at reshaping domestic socio-economic orders and open them up to each other.

But, in this extract, 'Common Market' refers not just to an institutional fact. It is also an epistemic construct: a site of observation, a mode of representation, ie, a standpoint placed above the fray of interstate relations and from which to frame, assess and govern the situation of states, economic operators and individuals.<fnref n="40" /> A set of specific interpretive techniques (eg, meta-teleological interpretation, autonomous interpretation),<fnref n="41" /> legal operations (eg, the institution of new legal concepts, recourse to structural principles),<fnref n="42" /> and legal doctrines (eg, the autonomy of EU law, 'effet utile')<fnref n="43" /> allow EU law to duplicate the fragmented process of integration and think as if the 'Common Market' were 'a grand idea of order (...) to which participants are ready to subordinate their national interests and their national hierarchy of values'.<fnref n="44" /> As a result, the factual and conflictual realities are pushed out of the plane on which EU law operates.

<footnote n="38">³⁸Chevallier is considered to be one of the essential 'brokers' of early supranational Europe listed by A Vauchez in *Brokering Europe. Euro-Lawyers and the Making of a Transnational Polity* (Cambridge University Press 2015).</footnote>

<footnote n="39">³⁹RM Chevallier, 'Methods and Reasoning of the European Court in its interpretation of Community Law' 2 (1965) Common Market Law Review 21.</footnote>

<footnote n="40">⁴⁰On the notion of the Common Market as a mode of representation, see H Lindhal, 'The Purposiveness of Law: Two Concepts of Representation in the European Union' 17 (1998) Law and Philosophy 481–507.</footnote>

<footnote n="41">⁴¹Case 283/81 CILFIT ECLI:EU:C:1982:335; M Poiares Maduro, 'Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism' (SSRN 2008).</footnote>

<footnote n="42">⁴²V Reveillère, 'Inquiring into Conceptual Practices' in MR Madsen, F Nicola and A Vauchez (eds), *Researching the European Court of Justice: Methodological Shifts and Law's Embeddedness* (Cambridge University Press 2022), 133–157.</footnote>

<footnote n="43">⁴³J van de Beeten, 'On Metaphor and Meaning: the Autonomy of the EU Legal Order Through the Lens of Project and System' 8 (2023) European Papers 1441–64.</footnote>

<footnote n="44">⁴⁴P Pescatore, *The Law of Integration. Emergence of a new phenomenon in international relations, based on the experience of the European Communities* (Sijthoff 1974) 50, 51.</footnote>
It is this conception that is now being challenged. There is an increased sense that, while being enmeshed in ever denser webs of interdependence, European societies are structurally embedded into beyond-control natural and socio-technical processes (climate change, digital revolution), dependent upon external resources that Europe does not own or control (critical raw materials), exposed to so-called or perceived 'out-of-control' social phenomena (migration, disinformation), subject to exorbitant 'infrastructural powers' (platforms), and surrounded by external actors who are rivals or even 'enemies' (USA, China, Russia). In retrospect, how striking and hackneyed are Jean Monnet's words uttered in 1963, which are at the roots of the European project: 'Today, in our industrial countries of the Western world and elsewhere, we are acquiring an unprecedented mastery over nature. Natural resources are no longer a limitation now that we control more and more forms of energy and can use raw materials in more and more ways'.<fnref n="45" /> Europe used to be engaged in an order-building enterprise, subject to internal limits that could only be shifted as Europe's norms were expanding. Now it finds itself exposed, vulnerable, and dependent.

For European leaders, this means that the EU should be understood as a 'geopolitical Europe'.<fnref n="46" /> At the conceptual level, it means that Europe is no longer to be understood as a full-fledged construction. It is now conceived of and experienced as a set of relations and interactions, which are dependent on natural, socio-technological and societal processes that are not institutionally moulded but factually given. There are intractable givens. Moreover, these processes are seen as disruptive and potentially destructive for political and social ordering. Ian Hacking has coined the notion of 'indifferent kinds' as opposed to 'interactive kinds' to refer to entities that are not aware of the classifications under which they are represented.<fnref n="47" /> The notion may be transposed to the European context. It suggests that the ecosystems and social systems that are core to European society are fashioned by processes and actors that are largely indifferent to, or independent from, any kind of constructive task. This new consciousness affects all Western societies. It prompts various sorts of regressive reactions, from willingness to take back control to a desire re-establish boundaries and a unilateral meaning of reality. In Europe, it has prompted a reaction that consists in re-orientating the EU's fundamental mission towards the maintenance of critical infrastructures and social functions.

In light of these challenges, the terminology has significantly changed in the EU. It is no longer about the building of a supranational political and socio-economic 'order'. Instead, it focuses on reinforcing the resilience of a range of 'ecosystems', both in connection with institutional constructions (Internal Market, Schengen, monetary system, banking system) and socio-technological complexes (financial system, energy system, information systems, global supply chains), irrespective of whether they are European or national in character. Simply put: the EU is reinventing itself as an 'infrastructural' entity.<fnref n="48" /> This practically means developing broad systems of rules and integrated legal frameworks in order to sustain these ecosystems.<fnref n="49" /> But it also involves an interpretation of EU rules, free movement rules in particular, that gives further consideration to social stability and social integration.<fnref n="50" /> This development relies on a concept of law that does not 'require a continuous effort of creation',<fnref n="51" /> but a continuous effort to maintain existing national and transnational socio-technical infrastructures and social systems.

<footnote n="45">⁴⁵J Monnet, 'A ferment of change' 1 (1963) Journal of Common Market Studies 203.</footnote>

<footnote n="46">⁴⁶L Middelaar, 'Europe's Geopolitical Awakening' Working Paper du groupe d'études géopolitiques (April 2021).</footnote>

<footnote n="47">⁴⁷I Hacking, *The Social Construction of What?* (Harvard University Press 2000).</footnote>

<footnote n="48">⁴⁸L Azoulai, 'Infrastructural Europe: EU Law and Human Life in Times of the Covid-19 Pandemic' 66 (2020) *Revista de Derecho Comunitario Europeo* 343–59.</footnote>

<footnote n="49">⁴⁹M Dougan, 'EU competences in an age of complexity and crises' 61 (2024) Common Market Law Review 93–138.</footnote>

<footnote n="50">⁵⁰See, eg, in the context of the socio-economic crisis in Greece, Case C-201/15 AGET Iraklis EU:C:2016:972. See also, in the context of trade and at the level of the EU as a whole, Opinion 1/17 CETA EU:C:2019:341.</footnote>

<footnote n="51">⁵¹P Pescatore, *supra* note 44 at 20.</footnote>
## B. The immanent authority of law

It has been famously stated that the development of European integration has given rise to ‘a structured network of principles, rules, and mutually interdependent relations linking the EU and its Member States, and its Member States with each other’.<fnref n="52" /> This conceptualisation is predicated on the assumption that European integration faces inherent contradictions relating to its authority and legitimacy. Since its inception, the problem has been to ensure the authority of a construction that is not supported by state’s means of enforcement and conventional markers of legitimacy. It has been challenging to build a new socio-economic order that purports to restructure domestic orders, yet largely depends on the resources and structures of its Member States. Law was designed as the means, providing both language and institutional practice, aimed at embedding and transmitting ideas about the ‘special type of relationship’ between European states and peoples.<fnref n="53" /> It was entrusted with the task of fashioning the tenuous and inherently precarious integration process into a legitimate and authoritative one. This is what Floris de Witte calls ‘normative immanence’: the assumption that, through law, the normativity of integration ‘translates neatly into facticity’.<fnref n="54" />

For this translation to work, two conditions are to be met. First, institutional agents and individuals should be disposed to accept that a course of action in accordance with EU law is reason to act, whilst a course of action in violation of EU law is reason to refrain from acting. One prerequisite is that EU law enjoys practical authority. This has been addressed through various techniques of empowerment and enforcement. A central technique has been to organise a sharing of powers whereby national Courts are empowered to act as ‘European judges’ for the safeguarding of the unity and effectiveness of EU law.<fnref n="55" /> Another important technique has been to empower individuals by conferring them rights and assigning them roles that correspond to the furthering of EU institutional objectives.<fnref n="56" />

The second condition is that EU law enjoys normative authority. Institutional agents and individuals should be disposed to give credence to EU law and its objectives. It is not enough that national authorities and individuals abide by EU rules; by doing so, they should also be willing to subject to norms which become the prevailing norms governing their social and economic life. To achieve this, EU law has traditionally relied on a structure of authority that is familiar to institutions and citizens across Europe: legalism and respect for law.<fnref n="57" /> But it has also involved the actors of integration into institutional networks (the ‘European judiciary’) and legal regimes ('Union citizenship') that presuppose a commitment to Europe.<fnref n="58" /> Thus institutions and individuals are led to think of themselves as embedded into a set of political, economic and social relations structured by EU law and forming a consistent whole. EU rules are turned into subjective dispositions and social practices. This is reflected in Advocate General Szpunar's statement that individuals are 'merely integrating into their everyday life the status of citizens of the Union conferred upon them by the Treaty'.<fnref n="59" /> Such a statement implies a concept of normative immanence: EU law is subject, as such, to social embeddedness. It is assumed that it may be put into a direct relationship with institutional practices and individual lives.

<footnote n="52">⁵²Opinion 2/13, *Accession of the European Union to the ECHR* EU:C:2014:2454, para 167.</footnote>

<footnote n="53">⁵³P Pescatore, *supra* note 44, Preface.</footnote>

<footnote n="54">⁵⁴F De Witte, 'Is this Europe? EU law's rendering of European society' (2025) European Law Open.</footnote>

<footnote n="55">⁵⁵Opinion 1/09, *Creation of a unified patent litigation system* ECLI:EU:C:2011:123, paras 82–5.</footnote>

<footnote n="56">⁵⁶L Azoulai, S Barbou des Places and E Pataut (eds), *Constructing the Person in EU Law: Rights, Roles, Identities* (Hart Publishing 2016).</footnote>

<footnote n="57">⁵⁷JHH Weiler, 'Community, Member States and European Integration: Is the Law Relevant?' 21 (1992) Journal of Common Market Studies 39.</footnote>

<footnote n="58">⁵⁸F De Witte, 'Rule in the new EU' (*online with the author*) relying on Tilly, *Trust and Rule* (Cambridge University Press 2005); A Vauchez, 'Droit et politique' in C Belot, P Magnette and S Saurugger (eds), *Science politique de l'Union européenne* (Economica 2008).</footnote>

<footnote n="59">⁵⁹Opinion in Case C-165/14 *Alfredo Rendón Marín* EU:C:2016:75, para 117.</footnote>
Clearly, this concept does not hold any longer. There is indeed no doubt that European law
meets with various forms of indifference, avoidance or resistance and that it has been so from the
outset.<fnref n="60" /> But this is not all: it turns out now that the structure of social reality does not adequately
respond to the form of law. This mismatch between socio-economic developments and pre-
existing legal arrangements was first made clear in the context of the financial and economic
crisis.<fnref n="61" /> The same kind of preoccupation then appeared in relation to the phenomena of migration,
climate change, and the digital revolution.<fnref n="62" /> Repeatedly over the last two decades, Europe has been
confronted with practices and phenomena which seem to largely elude any form of effective
governance by law. This has raised a widespread sense of normative inadequacy. This did not
simply lead to the development of forms of ‘non-legality’.<fnref n="63" /> Instead, it translated into a new form
of legality.

This sense of normative inadequacy has prompted a set of institutional reactions. A pattern has
developed which has consisted in ‘doubling down on the rules’ before formal rules were eventually
supplemented and sometimes even supplanted by informal rules.<fnref n="64" /> Over time, this has led to the
development of new governance techniques. One of these is the development of provisions aimed
at unpacking and assessing the vulnerabilities of the EU and Member States’ own systems of
rules.<fnref n="65" /> Another novelty is the proliferation of measures directly targeting the behaviours of public
and private operators, establishing rules of conduct, for instance in the form of due-diligence
duties and conditionality provisions.<fnref n="66" /> These techniques respond to a perception of objective
conditions in which EU rules shape social and technical processes that are unsuitable for a
government by legal norms. They rely on a concept of rule, that internalises the social
disembeddedness of legal normativity.

This concept of rule may also help explain two additional features of the current European
moment. This is, firstly, a reliance on the distribution of financial resources, rather than rules, as
the transmission belt through which the political objectives of integration can be made effective.
Secondly, it explains the ambivalent stance towards regulation espoused by the EU institutions
themselves. The recent move towards a 'simpler Europe' resulting in the withdrawal of legislative
proposals and the deletion of specific requirements relating to environmental protection, equality,
transparency or privacy is not just the result of a concern to foster competitiveness, in a context of
geopolitical and trade instability.<fnref n="67" /> It is also not just triggered by the protests of discrete social
groups such as farmers. Instead, it reflects a deeper trouble about governability, especially about
the question of how a society can be rendered governable in a context of normative inadequacy.
This trouble is simultaneously displayed and concealed by deploying the concept of European
society.

<footnote n="60">⁶⁰A Vauchez, ‘The Map and the Territory: Re-Assessing EU Law’s Embeddedness in European Societies’ 27 (2020) Maastricht Journal of European and Comparative Law 133–6.</footnote>

<footnote n="61">⁶¹C Joerges and C Kreuder-Sonnen, ‘European Studies and the European Crisis. Legal and Political Sciences Between Critique and Complacency’ 23 (2017) European Law Journal 118–39.</footnote>

<footnote n="62">⁶²M Hiltunen, ‘Exploring the legal making of the European digital economy’ 3 (2024) European Law Open 633–54.</footnote>

<footnote n="63">⁶³F Johns, *Non-Legality in International Law. Unruly Law* (Cambridge University Press 2013).</footnote>

<footnote n="64">⁶⁴VA Schmidt, *Europe's Crisis of Legitimacy. Governing by Rules and Ruling by Numbers in the Eurozone* (Oxford University Press 2020).</footnote>

<footnote n="65">⁶⁵This is for instance enshrined in Article 32 of Regulation 2019/1896 on the European Border and Coast Guard and repealing Regulations entitled ‘vulnerability assessment’. See also, in the context of the internal market, the operation of the Single Market Scoreboard as reported in European Commission, *Annual Single Market Report 2023*, SWD (2023) 26 final.</footnote>

<footnote n="66">⁶⁶On the pervasiveness of rules of conduct in EU law’s recent developments, M Dougan, ‘From Crisis to Resilience in EU Internal Market Law: Foundations, Techniques and Challenges’ 51 (2024) Legal Issues of Economic Integration 317–48.</footnote>

<footnote n="67">⁶⁷European Commission, *Moving forward together: A Bolder, Simpler, Faster Union*, COM (2025) 45 final. See H Ruschemeier, ‘The De-Regulatory Turn of the EU Commission’ *Verfassungsblog* (18 February 2025).</footnote>
C. Difference transcended

In its Opinion 2/13, the Court of Justice stated that the EU’s legal structure is ‘based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it a set of common values on which the EU is funded, as stated in Article 2 TEU’.<fnref n="68" /> Article 2 TEU comprises two parts. In the first part, it refers to the respect for liberal values in a democratic polity; in the second part, it builds upon the ‘social acquis’ of European states, linking these values to a liberal model of social formation.<fnref n="69" /> It is taken for granted that these values constitute the normative background against which European integration has operated since its inception. Although they may conflict with each other and with other legitimate interests, and notwithstanding the fact that they may be subject to interpretation and balancing, it is essential that ‘the framework of the structure and objectives of the EU’ be preserved.<fnref n="70" /> For the Court, the preservation of this basic framework is a condition for ensuring ‘the autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law’.<fnref n="71" />

Autonomy refers to the notion that EU law is endowed with its own basis of validity (the EU Treaties as a ‘constitutional charter’), provided with its own sources of meaning (EU law concepts and interpretations) and action (internal policies and international agreements), and equipped with effective modes of enforcement. These are ‘the essential characteristics of the EU and its law’.<fnref n="72" /> Such characteristics have been essential ever since the Court found, in *Costa v ENEL*, that there can be no questioning of the autonomy of EC/EU law ‘without being deprived of its characteristics as Community law and without the legal basis of the Community itself being called into question’.<fnref n="73" /> In other words, the autonomy of the EU legal order is the formal mechanism through which the substantive basis of Europe is secured. It is thus not only about protecting the unity and integrity of EU law in adverse domestic and international contexts. Beyond this looms a broader concern: that of ensuring that Member States and their societies do not diverge from each other and do not fall apart internally; that of avoiding that intersubjective and intersocial relations between and within Member States degenerate into deep conflicts and fierce antagonism.<fnref n="74" /> Autonomy serves the purpose of transcending the problem of internal difference.

This same purpose has informed the elaboration of the main building blocks of EU law. These include ‘Union institution’, considered not as a ‘common organ’ as in the contractual theory of international organisations, but as an organ enjoying autonomy of action;<fnref n="75" /> ‘Union membership’, which suggests the existence of a collectivity which goes beyond a combination of its constituencies;<fnref n="76" /> ‘Union citizenship’, seen as a form of empowerment of nationals who are granted a space of autonomous action and social integration beyond and across the territorial boundaries of the Member States;<fnref n="77" /> and ‘Union law’ itself, conceived of as a set of concepts, principles and

<footnote n="68">⁶⁸Opinion 2/13, *Accession of the European Union to the ECHR* EU:C:2014:2454, para 168.</footnote>

<footnote n="69">⁶⁹Art 2 TEU reads: ‘*The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail*.’</footnote>

<footnote n="70">⁷⁰Opinion 2/13, *Accession of the European Union to the ECHR* EU:C:2014:2454, para 170.</footnote>

<footnote n="71">⁷¹Ibid.</footnote>

<footnote n="72">⁷²Case C-284/16 *Achmea* EU:C:2018:158, para 33.</footnote>

<footnote n="73">⁷³Case 6/64 *Costa v ENEL* ECLI:EU:C:1964:66.</footnote>

<footnote n="74">⁷⁴This is the main point of European integration from the perspective of social sciences: B Karsenti, *Nous autres Européens. Dialogue philosophique avec Bruno Latour* (PUF 2024).</footnote>

<footnote n="75">⁷⁵Case 38/69 *Commission v. Italy* [1970] ECR 47, para 10. See, for an elaboration, Editorial Comments, ‘Union membership in times of crisis’ 51 (2014) Common Market Law Review 1–11.</footnote>

<footnote n="76">⁷⁶Joined Cases 6/69 & 11/69 *Commission v. France* ECLI:EU:C:1969:68, para 16.</footnote>

<footnote n="77">⁷⁷L Azoulai, ‘Transfiguring European Citizenship: From Member State Territory to Union Territory’ in D Kochenov (ed), *Citizenship and Federalism in Europe: The Role of Rights* (Cambridge University Press 2017) 178–203.</footnote>
mechanisms that protect the institutional structure from the social dynamics of difference, be it ideological, social or cultural.<fnref n="78" />

The emergence of the concept of European society may well coincide with the realisation that the problem of difference has not been overcome. Despite the historically unprecedented intensity of interdependence between the societies making up the Union, the decrease in mutual trust and harmony is tangible, both between and within European societies. Within Western societies, individuals and social groups are internally polarising, not just on the basis of differences of opinions and values, but regarding their approach to facts, reality and ways of picturing a common world.<fnref n="79" /> This holds true in the EU. As a result, the ‘fundamental premiss’ of shared values is shaken. It has become clear that any form of overall normative agreement, including one that would be based on Article 2 TEU cannot be taken for granted. The extreme fragility of a shared understanding of reality in Europe has come to the fore in relation to deep social and political conflicts, which revolve around basic issues related to the reproduction of life (climate change, pandemics, reproductive rights issues, with corresponding entrenched social vulnerabilities), the integration of migrants and social outsiders (terrorists suspects, criminals, political activists), and the protection of minority groups (sexual, ethnic or religious groups).<fnref n="80" /> European law is not immune to these existential conflicts. Many of the pathologies associated with the resurgence of conflicts are indeed attributed, at least partly, to European integration. On the other hand, the EU’s institutional machinery and legal system seem to be unfit to cope with conflicts and differences that are not simply reducible to a balancing between liberal values.

The main concern therefore is with what Europe and its law are like, when what European institutions have regarded as the *sine qua non* of their existence – the ‘fundamental premiss’ – is absent. To address the inevitability of difference, the EU relies on mechanisms of ordering and bordering.<fnref n="81" /> It identifies and, at the same time, externalises the difference. This is reflected in the fact that it increasingly uses the language of ‘identity’. Institutions express their determination to defend the European value order, both in relation to the dividing ‘other’ inside Europe and, vis-à-vis, the threatening ‘other’ outside Europe. Within Europe, one of the major dividing factors has come from the rule of law backsliding. In this context, the EU institutions have engaged in an act of performative reflexivity whereby they describe themselves as guardians of the identity of the European Union. In two judgements of 16 February 2022 concerning the validity of the Conditionality Regulation 2020/2092, the Court of Justice undertook to endow the concept of EU’s identity with binding legal effects.<fnref n="82" /> It confirmed that the effective protection of the Union’s financial interests presupposes respect for the rule of law. As a way to support this conclusion, it held that ‘*the values contained in Article 2 TEU [...] define the very identity of the European Union as a common legal order*’. It then inferred what seemed to be the natural consequence of that statement: ‘*the European Union must be able to defend those values*’. According to the Court, there is a need to defend the EU’s founding values against illiberal practices of the Member States’ authorities. This suggests that there are institutional practices that develop outside the ‘*common legal order*’. Clearly, this ‘common legal order’ is to be distinguished from the traditional EU legal

<footnote n="78">⁷⁸L Azoulai, ‘Le conflit des conflictualités dans le droit de l’Union européenne’ in G Marti and L Robert (dir.), *la conflictualité dans l’Union européenne* (Larcier 2024) 27–34.</footnote>

<footnote n="79">⁷⁹On the nature of polarisation in the US context, with more general lessons to be drawn about Europe, S Iyengar et al, ‘The Origins and Consequences of Affective Polarization in the United States’ 22 (2019) Annual Review of Political Science 129–46.</footnote>

<footnote n="80">⁸⁰These are conflicts that Scheffer coins as ‘existential problems’ (T Scheffer, ‘Existentielle Probleme, soziologisch’ 10 (2021) *Zeitschrift für Theoretische Soziologie* 3–33) and Blitstein & Lemieux call ‘modernity conflicts’ (PA Blitstein and C Lemieux, ‘Comment rouvrir la question de la modernité?’ 123 (2018) *Politix* 9–33).</footnote>

<footnote n="81">⁸¹H van Houtum and T van Naerssen, ‘Bordering, Ordering and Othering’ 93 (2002) Tijdschrift voor Econimishe en Sociale Geografie 125–36. On the notion of bordering transposed to EU law context, A Petti, ‘EU law in the geopolitical era: external re-bordering and internal de-bordering’ (forthcoming 2025) Common Market Law Review.</footnote>

<footnote n="82">⁸²Case C-156/21 *Hungary v. Parliament and Council* EU:C:2022:97 and Case C-157/21 *Poland v. Parliament and Council* EU:C:2022:98.</footnote>
order based on an ‘*original consensus*’ subsuming all differences.<fnref n="83" /> It is EU law as a device that identifies difference and, in turn, vindicates its identity.

The concept of ‘European society’ is expounded in a judgment rendered by the General Court on 27 July 2022. *Russia Today France v Council* was issued in the context of Russia’s military aggression in Ukraine.<fnref n="84" /> In March 2022, the Council of the European Union had decided to suspend the activities of Russian state-controlled media on EU territory. This action was justified by ‘*public interests which aim to protect European society*’.<fnref n="85" /> The Court considered that, although they entailed a restriction on freedom of expression, ‘*the restrictive measures at issue, which were targeted at the media outlets controlled by the Russian Federation engaged in propaganda actions in support of the military invasion of Ukraine by the Russian Federation, were capable of protecting the Union’s public order and security and preserving the integrity of democratic debate within European society, peace and international security*’. In other words, the Court found that ‘*the foundations of democratic societies*’ must be defended. The concept of European society is thus developed as an instrument of defence against an external threat that has a name (the ‘war’, ‘Russia’), and in the context of fragile and polarised societies, subject to a ‘*continuous and concerted activity of disinformation and manipulation of the facts*’.<fnref n="86" /> These threats justify a restriction to freedom of expression, and could potentially justify – should the meaning of threat be extended – further rights restrictions in the future.<fnref n="87" /> Such restrictions are the outcome of a model in which differences are recognised only as long as they are compatible with Article 2 TEU and the model of society envisaged herein. It follows that difference is reintroduced into EU law as a polarising reference with a view to saving the specific form of Europe’s sociability.<fnref n="88" />

Two points are suggested by the foregoing analysis. In the first place, the concept of European society has emerged in a context in which European integration is facing critical challenges. These challenges affect the conceptual foundations of the project. The reference to European society is one way to acknowledge and confront this: the awareness of intractable and unpredictable givens that impose themselves on the European construct is addressed through a promise of stability; the trouble with the normative immanence of European law is addressed through a commitment to governability; the cracks in the normative foundations of Europe are addressed through an engagement to defend Europe’s model of sociability. European society is found to be made up of stability, governability and sociability. Secondly, these three notions form the basis for the development of a new legal idea of Europe. However, some elements of this idea had already been there, in particular in the field of external relations law. This is hardly surprising. In this area, the EU has always been confronted with challenges which are similar to the ones the EU is currently facing: the difficulty of coping with external realities and actors that are not under control, the challenges of governing processes that elude the empire of EU norms, the difficulty of engaging with perceived otherness. Not by chance tools like integrated legal frameworks, rules of conduct

<footnote n="83">⁸³Koncewicz, *supra* note 32.</footnote>

<footnote n="84">⁸⁴Case T-125/22 *RT France v. Council* EU:T:2022:483.</footnote>

<footnote n="85">⁸⁵Decision 2022/351 of 1 March 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine and Council Regulation 2022/350 of 1 March 2022 amending Regulation No 833/2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine.</footnote>

<footnote n="86">⁸⁶See further European Commission, *Digital Services Act: Application of the Risk Management Framework to Russian disinformation campaigns* (August 2023).</footnote>

<footnote n="87">⁸⁷See European Commission, *Communication on countering hybrid threats from the weaponisation of migration and strengthening security at the EU's external borders*, COM (2024) 570 final, in which the Commission argues that the right to asylum can be suspended in exceptional cases at the external borders. See also D Thym, ‘Does the Commission Cross the Rubicon? Legalising ‘Pushbacks’ on the Basis of Art 72 TFEU’ EU Migration Law Blog (10 January 2025).</footnote>

<footnote n="88">⁸⁸This way, EU law reconnects with a post-war European political theory central concern: J Norberg, *Sociability and Its Enemies. German Political Theory After 1945* (Northwestern University Press 2014).</footnote>
and reference to European identity were first developed in the field of external relations and are
now extended and reframed in the law of European society.<fnref n="89" />

3. The society of European law

The questions that follow, if we are to admit the conceptual transformation of Europe and its
law, are the following: What kind of society is produced by virtue of this law? And how are we
to apprehend and assess the social effects of this law? These questions have a threefold
dimension. The first is *ontological* and concerns the elements that are considered to be the
basic constituents of such a society. The second dimension is *epistemological* and concerns the
ways in which this law approaches social realities. The third one is *ethical* in nature; it is
implicated in the concept of society in so far as it is concerned with modes of existence and
coexistence. It is a question often uttered on the ground and in the media, emerging from
social groups in various ways, sometimes as an anxious call, sometimes as an angry cry: *Is this
the way we want to live in Europe now?*<fnref n="90" />

To start addressing these questions, I will rely on a series of cases drawn from the recent case
law of the Court of Justice. The Court’s case law is one of the lenses through which to observe the
development of the law of European society, alongside the legislative setting and the doctrinal
movement of legal ideas. It is privileged here because it is a site where the institutional language
and broad interests of the main political actors most clearly connect and collide with social forces
and the broad conflictuality of the social field. The overview of the case law presented is
incomplete, but hopefully, by exploring the cases selected through the breadth of items and
arguments they contain, including arguments dismissed and paths not taken, we may hope to shed
some light on the kind of society EU law is projecting. If anything, these cases convey the idea that
this society has three primary elements. First, materiality: European society is a set of
infrastructures, socio-technical systems and modes of governance that are co-integrated, for
instance in the transport and energy sectors. The second element is relationality: European society
is a framework for social interactions and relationships governed by systems of norms that assign a
place and a meaning to each individual, most notably in the fields of Union citizenship, migration,
and law enforcement. The third element is differentiation: European society correlates the process
of differentiation of particular groups in society with a process of integration and assimilation into
society as a whole. This is what we have when EU law is confronted with claims vindicated by
LGBTIQ+ persons and religious groups.

In all three dimensions, the law of European society raises specific issues that can be termed, by
reference to social theory, ‘social reproduction’, ‘psycho-social identification’, and ‘socio-political
recognition’. In this context, the recourse to a conceptuality drawn from social theory is
instrumental. It is a way to make practical social problems and constraints, which may be
discerned in the interstices of the case law and through its variation, relevant to the actors
responsible for the development of the law of European society. It is a way to bring the
institutional construct of European society back to a proper relation of law to society.

<footnote n="89">⁸⁹On the insight that the internal follows the external, T Marzal, 'EU values and the place of European society: an external-focused account' (2025) European Law Open.</footnote>

<footnote n="90">⁹⁰This question echoes Ben Judah’s book title: *This is Europe. The Way We Live Now* (Picador 2023). It resonates with a long tradition in moral philosophy and critical theory. To name but a few recent publications along this tradition: R Jaeggi, *Critique of Forms of Life* (Harvard University Press 2018); S Laugier, ‘The Texture of Importance: Ethics after Cavell and Diamond’ in von Sass and Amesbury (eds), *Ethics after Wittgenstein. Contemplation and Critique* (Bloomsbury Academic 2021); J Butler, *What World is This?* (Columbia University Press 2022).</footnote>
A. Social reproduction

The energy and transport sectors are two sectors referred to as critical infrastructures by the EU.<fnref n="91" /> Both are based on a model of green transition involving deep transformations in the modes of social relations and economic production, including the implicit but concomitant externalisation of socio-ecological costs outside Europe. The aim is to develop a new European industrial economy of sustainable growth and prosperity. This ideal has two major components. First, there is the idea that competitiveness and preservation of infrastructures, rather than degrowth or dismantling, determine the transition. Second, there is the notion that transition requires social fairness.<fnref n="92" /> What the observation of EU law makes clear is that a European society that subscribes to such ideal will inevitably produce social conflicts. These conflicts are usually framed as distributive conflicts.

In some Member States like Poland, the cost of the green transition is perceived as significantly higher than in other Member States. Considering the specifics of the Polish energy system, the Minister of Climate and Environment decided, in March 2020, to extend the concession to operate the Turów coal mine located at the border between Poland, the Czech Republic and Germany.<fnref n="93" /> The Czech Republic, supported by ecological organisations, challenged this decision and brought the case before the European Commission. The Commission issued a reasoned opinion on 17 December 2020 where it considered that the measure of extension adopted without carrying out an environmental impact assessment infringed the EIA Directive.<fnref n="94" /> Following this opinion, the Czech Republic referred the matter to the Court of Justice. The judicial action included an application for interim measures, requesting the immediate cessation of lignite extraction activities in the mine.

In its recent case law, the Court has made clear that, in case of conflict about energy supply, the distributional analysis may result in specific arrangements granted to Member States like Poland.<fnref n="95" /> This is because the preservation of critical resources and infrastructures is at stake. The Union is committed to 'ensur[ing] energy security in the European Union as a whole and in all its Member States individually'.<fnref n="96" /> However, this commitment must be balanced with the commitment to the green transition. In the particular case brought by the Czech Republic, the Court considered that it had not been demonstrated that the closure of the mine would threaten 'energy security' and 'expose a large part of the territory of Poland to the risk of systemic failure'. It was confident that electricity network operators were able 'to balance the electricity network in order to compensate' for the unavailability resulting from the cessation of activities. In other words, the system was not at risk of breakdown. The provision of energy was secured.

But what about the situation of workers and local communities? Poland argued that the closure would entail the loss of thousands of jobs for the workers of the mine and employees of the subcontracting undertakings. Protests were organised by the residents of the Turów basin, joined by nationalist and far-right groups.<fnref n="97" /> In its order, the Court rejected the argument. It replied that the socio-economic damage 'is essentially pecuniary in nature and cannot [...] be regarded as irreparable, since financial compensation is generally capable of restoring the position of the person

<footnote n="91">⁹¹See Annex to Directive 2022/2557 on the resilience of critical entities; Cirotteau, 'Les infrastructures critiques en droit de l'Union européenne' (2023) 3 Revue des affaires européennes 729-38.</footnote>

<footnote n="92">⁹²European Commission, *The Clean Industrial Deal* COM (2025) 85 final.</footnote>

<footnote n="93">⁹³It should be noted that this is not just the PIS government. A prolongation of the mining concession until 2044 was again issued in February 2023.</footnote>

<footnote n="94">⁹⁴Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment.</footnote>

<footnote n="95">⁹⁵OPAL Pipeline case: Case T-883/16 *Poland v. Commission* EU:T:2019:567; Case C-848/19 P *Germany v. Poland* EU: C:2021:598.</footnote>

<footnote n="96">⁹⁶Case T-883/16, para 52.</footnote>

<footnote n="97">⁹⁷P Żuk and P Żuk, 'The Turów Brown Coal Mine in the shadow of an international conflict: Surveying the actions of the European Union Court of Justice and the populist policies of the Polish government' 10 (2022) The Extractive Industries and Society Journal 1-8.</footnote>
suffering the damage to what it had been before the damage occurred'. This reasoning is fully in line
with the model of 'just' or 'fair transition' promoted by the Commission. The social issue is
addressed in terms of financial support in restructuring processes and enhancement of people's
skills. In the same vein, the Commission has recently approved, under the EU State aid rules, a
Polish financial scheme to support workers affected by the closure of coal and lignite mines.<fnref n="98" />
Such measures are meant to facilitate 'social acceptance' while contributing to the objectives of
Union climate policy.

This course of action may well be a fair distributional response to widespread social concerns. However, it is inherently oblivious of concerns that are not reducible to resources and financial compensation.<fnref n="99" /> In this respect, the Turów protest echoes the Yellow Vests uprising in France. These movements mobilise people who perceive themselves as being the most exposed to the impact of the green transition. Sociological studies have shown that their concerns are much wider than the question of work, and included the rise in energy price, fears of loss of the local living environment, fears of downgrading in terms of social and intra-family statuses, and deteriorated access to essential services, transport and housing conditions.<fnref n="100" /> These are all social reproduction issues. In essence, social reproduction refers to the ways in which people reproduce their lives as biological beings, family members and individuals outside the workplace. Social reproduction theorists insist that our understanding of capitalist societies is 'incomplete if we treat it as simply an economic system involving workers and owners, and fail to examine the ways in which wider social reproduction of the system – that is daily and generational reproductive labor that occurs in households, schools, hospitals, prisons, and so on – sustains the drive for accumulation'.<fnref n="101" /> These issues are blurred by EU law, which tends to focus on infrastructures stability and tangible social value, i.e. support for workers in transition and for workers' skills.<fnref n="102" />

The road transport sector is another European critical infrastructure. It is governed by a
political economy based on the requirement ‘to maintain the competitiveness of the EU economy’
while ensuring adequate working conditions for drivers.<fnref n="103" /> This sector has long been deemed to
be dysfunctional. It is based on a business model that generates work practices, which, in turn,
render the system unsustainable. This model includes the establishment of subsidiaries in
Eastern countries with low pay and social protection standards and cabotage rules, ie, rules
limiting the transportation of goods within the same country by a transport operator from
another country. The upshot is the exploitation of truck drivers (from Europe or outside
Europe) ‘who would work and live on the road for months in deplorable conditions’.<fnref n="104" /> Yet, the
concern is not just exploitation. This sector is characterised by over-exploitation (stress, fatigue,
depression) and alienation (deprivation of actual freedom of choice as regards working
conditions) to the point of personal collapse.<fnref n="105" /> To address this problem, the EU decided in 2020
to regulate the sector by imposing new rules of conduct on employers and drivers (resting
periods, waiting periods, regular return of drivers and vehicles to the country of establishment),

<footnote n="98">⁹⁸European Commission, *Authorisation for State aid pursuant to Articles 107 and 108 TFEU* C(2024) 822 final.</footnote>

<footnote n="99">⁹⁹On the argument, M Radin, *Contested Commodities* (Harvard University Press 1996).</footnote>

<footnote n="100">¹⁰⁰A Bernard de Raymond and S Bordiec, *Sociologie des Gilets jaunes. Reproduction et luttes sociales* (Le Bord de l’Eau 2024); P Genestier, ‘Les “gilets jaunes”: une question d’autonomie autant que d’automobile’ 204 (2019) *Le Débat* 16–34.</footnote>

<footnote n="101">¹⁰¹TA Bhattacharya, *Social Reproduction Theory: Remapping Class, Recentering Oppression* (Pluto Press 2018), 2 citing Susan Ferguson.</footnote>

<footnote n="102">¹⁰²European Commission, *A Union of Skills to equip people for a competitive Europe* (5 March 2025). Interestingly, a similar reasoning is to be found in the recent *Front Polisario II* judgment, in which the issue of self-determination issues is reduced to a problem of ‘specific, tangible, substantial and verifiable benefit from the exploitation of that territory’s natural resources’ (Joined Cases C-779/21 P & C-799/21 P).</footnote>

<footnote n="103">¹⁰³Joined Cases C-541/20, C-542/20, C-543/20, C-544/20, C-545/20, C-546/20, C-547/20, C-548/20, C-549/20, C-550/20, C-551/20, C-552/20, C-553/20, C-554/20, C-555/20 Lithuania, Bulgaria, Romania, Cyprus, Hungary, Malta, Poland v Parliament and Council EU:C:2024:818, paras 635, 1227.</footnote>

<footnote n="104">¹⁰⁴A Crespy, *The European Social Question* (Agenda Publishing 2023) 100.</footnote>

<footnote n="105">¹⁰⁵This is documented in the judgement itself: Joined Cases C-541/20 et al, paras 268, 283, 260, 173.</footnote>
as well as new devices of control in the form of modern tachographs.<fnref n="106" /> The introduction of these new rules through a set of legislative measures called the ‘EU Mobility Package’ met with strong resistance in Eastern and Baltic countries. As argued by Advocate General Pitruzzella in its opinion under the case, the Mobility Package ‘brings clearly into view the risk of a split between two visions of the European Union’.<fnref n="107" />

The central argument put forward by the countries challenging the validity of the Package is of a distributional character. It is explicitly articulated in terms of discrimination between Member States, undertakings and drivers ‘situated on the periphery of the European Union’ and Member States, undertakings and drivers ‘situated at the centre of the European Union’, ie, ‘in the western part of the European Union’.<fnref n="108" /> It is argued that the costs and losses associated with the obligations stemming from the Package are likely to be substantially greater for the former than for the latter.<fnref n="109" /> This would be the result of entrenched asymmetries between these two parts of Europe. The response of the Court of Justice is classically holistic and institutional. With a view to confirming the validity of the Package, regard should be had to ‘the situation of all the Member States’.<fnref n="110" /> The fact that certain Member States and undertakings will be significantly affected by the implementation of the Package is balanced against the social protection that it is supposed to ensure to all drivers. According to the Court, these effects are merely due to a choice of business model that involves providing services to recipients established in Member States distant from the Member State of establishment. What matters is that the Package is ‘applied equally to all Member States’ and that it is ‘consistent with the social ambitions of the European Union’.<fnref n="111" /> The Court thus applied its classic jurisprudence of distribution.<fnref n="112" />

This reasoning fails to consider the argument of geography. The Court regards the fact that economic operators and drivers suffer differently by virtue of their geographical location as inoperative. On the one hand, this difference is reduced to ‘different operating conditions’. On the other hand, the Court finds the argument not conclusive as long as there is ‘no inequality in law inherent in the contested provision’.<fnref n="113" /> In this context, geography stands for economic and social inequalities. Yet, it is obscured in the framework of balancing of interests adopted by EU institutions. The Court contents itself with the fact that ‘the EU legislature sought [...] to strike a new balance, taking into account, on the one hand, the interest of drivers in enjoying better working conditions and greater road safety and, on the other hand, the interest of employers in carrying on their transport activities under fair commercial conditions’.<fnref n="114" /> As a result, factors related to the impact of these new regulations on living conditions beyond mere working conditions (eg, risks of job losses, low wage labour, increased fatigue and loneliness) are deemed purely ‘speculative’.<fnref n="115" /> The Court’s reasoning demonstrates how the EU law framework downplays social reproduction issues.

<footnote n="106">¹⁰⁶The EU response is in the form of a set of legislative pieces: Regulation 2020/1054 as regards minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods; Regulation 2020/1055 amending Regulations 1071/2009, 1072/2009 1024/2012 with a view to adapting them to developments in the road transport sector; Directive 2020/1057 laying down specific rules with respect to Directive 96/71 and Directive 2014/67 for posting drivers in the road transport sector.</footnote>

<footnote n="107">¹⁰⁷Opinion of Advocate General in Joined Cases C-541/20 et al, above note 102, para 3. See D Schiek, ‘ECJ 4 October 2024, Judgment on East/West Divide, future of social policy and fate of transport workers’ online.</footnote>

<footnote n="108">¹⁰⁸Joined Cases C-541/20 et al, above note 103, paras 278, 302–308, 349, 543, 555.</footnote>

<footnote n="109">¹⁰⁹Ibid., for instance: paras 278, 302.</footnote>

<footnote n="110">¹¹⁰The Package is upheld by the Court: only the transport companies’ obligation to return each vehicle to the home base every eight weeks is invalidated on the ground that it was not subject to impact assessment. Ibid., para. 719.</footnote>

<footnote n="111">¹¹¹Ibid., para 283.</footnote>

<footnote n="112">¹¹²Editorial comments, ‘A Jurisprudence of distribution for the EU’ 59 (2022) Common Market Law Review 957–68.</footnote>

<footnote n="113">¹¹³Joined Cases C-541/20 et al, above note 103, para 322.</footnote>

<footnote n="114">¹¹⁴Ibid., paras 282, 1316.</footnote>

<footnote n="115">¹¹⁵Ibid., paras 292, 293, 397. On pay, see in parallel pending Case C-19/23 on the validity of Adequate Minimum Wages Directive: C Kilpatrick and M Steiert, ‘A little learning is a dangerous thing: AG Emiliou on the Adequate Minimum Wages Directive (C-19/23, Opinion of 14 January 2025)’ Law EUI Working Paper 2025.</footnote>
The law of European society has grown in parallel with the narrative that Europe has shifted from a 'space' to a 'place' that ensures that the European society is resilient and 'no one is left behind'.<fnref n="116" /> However, as the two cases above have illustrated, its specific mode of reassurance is focused on distribution in a way that discards social reproduction issues. This is likely to generate forms of 'social insecurity' and a sense of loss, subject to political exploitation in today's Europe.<fnref n="117" /> Social and economic disenfranchisement is too easily turned into discourses that are prone to exploiting the 'popular backlash' against the green transition and scapegoat fragile groups in society.<fnref n="118" /> The framing in terms of social reproduction avoids this polarisation. It brings together groups that are essential to the functioning of Europe's economy and society, but whose living conditions and sense of loss are largely ignored, whether they are mine workers or rural communities opposed to mining activities.<fnref n="119" />

## B. Pyscho-social identification

Migration and law enforcement are areas which the EU considers to be parts of its 'security ecosystem'.<fnref n="120" /> This ecosystem, made up of norms, operational capacities and institutional bodies (such as EU Agency for Cybersecurity, Europol, Eurojust, Frontex), is based on two major components. One is the notion that European society is at risk of being destabilised by threats such as high-risk individuals, organised crime, corruption, domestic violence, child sexual abuse, and, according to this narrative, uncontrolled migration. This prompts the EU to equip itself with social risk analysis and vulnerability assessments.<fnref n="121" /> The other component is the concern for a 'society at peace' that prevents the emergence of conflicts and avoids points of social tensions.<fnref n="122" /> The EU is concerned with 'the fostering of social cohesion at local, national and European level'.<fnref n="123" /> However, a system that is so constructed is bound to generate issues of identification. I do not simply refer to mechanisms of identification, screening, profiling and surveillance that have developed in the migration and law enforcement areas.<fnref n="124" /> I also refer to what has been found to be one of the prerequisites for the development of social relations in modern societies: the deeply ambivalent psycho-social process of identification with others that produces both attraction and repulsion.<fnref n="125" />

The capacity for identification of Europeans has been tested in recent cases concerning migrants. *Sea Watch* concerns two NGOs' vessels engaged in operations of assistance and rescue of migrants in the Mediterranean. The context is one of criminalisation of NGO members by Member States, in particular Italy. As a result, NGOs have endeavoured to insulate their operations as much as possible from intervention by States.<fnref n="126" /> The paradox in this area is the fact that, despite extensive media coverage, the hardships suffered by migrants in the Mediterranean

<footnote n="116">¹¹⁶European Commission, *The Just Transition Mechanism: making sure no-one is left behind* (January 2020).</footnote>

<footnote n="117">¹¹⁷The concept of social insecurity has been developed by R Castel, *L'insécurité sociale. Qu'est-ce qu'être protégé?* (Seuil 2003).</footnote>

<footnote n="118">¹¹⁸MT Huber, *Climate Change as Class War* (Verso 2022) at 203.</footnote>

<footnote n="119">¹¹⁹On local communities and indigenous people opposed to mining, S Bogojevic, 'The European Green Deal, the rush for critical raw materials, and colonialism' 15 (2024) Transnational Legal Theory 600–15.</footnote>

<footnote n="120">¹²⁰European Commission, *EU Security Union Strategy* COM (2020) 605.</footnote>

<footnote n="121">¹²¹See, in the field of migration, Regulation 2016/1896 and Frontex Annual Risk Analysis 2024/2025.</footnote>

<footnote n="122">¹²²In its EU Security Union Strategy (op. cit.), the Commission writes: 'The polarisation of society, real or perceived discrimination and other psychological and sociological factors can reinforce people's vulnerability to radical discourse'.</footnote>

<footnote n="123">¹²³*Ibid.*, at 16. This is reflected in the CJEU's case law: Joined Cases C-443/14 & C-444/14 *Allo and Osso* EU:C:2016:127 (migration); Joined Cases C-804/18 & C-341/19 *WABE e. a.* EU:C:2021:594 (religion); Case C-148/22 *Commune d'Ans* EU: C:2023:924 (religion).</footnote>

<footnote n="124">¹²⁴N Vavoula, 'Algorithmic Accountability Through the 'Human over the Loop' in Interoperable and EU AI-reliant Large-scale IT Systems for Migration and Security' 9 (2024) European Papers 1228–49.</footnote>

<footnote n="125">¹²⁵S Freud, *Group Psychology and the Analysis of the Ego* [1921]; J Whitebook, 'On Human Sociability' in Christ, Lepold, Loick (eds), *Debating Critical Theory. Engagements with Axel Honneth* (Rowman Littelfied International 2020); E Balibar, *Spinoza politique. Le transindividuel* (PUF 2024), esp. Chap 4.</footnote>

<footnote n="126">¹²⁶I Mann, 'The Right to Perform Rescue at Sea: Jurisprudence and Drowning' 21 (2020) German Law Journal 598–619.</footnote>
remain invisible, seem remote and appear ‘ungrievable’ to many Europeans.<fnref n="127" /> Hypervisibility of an event involving distressed others coincides with a failure to identify with these. This conundrum triggers the question to what extent EU law is implicated in this failure.

During the Summer of 2020, *Sea Watch 3* and *Sea Watch 4*, two ships flagged in Germany, disembarked persons in danger or distress rescued at sea in the Port of Palermo and Porto Empedocle. Subject to inspections by Italian authorities, the two ships were ordered to be detained on the grounds that they were not certified for the purposes of search and rescue activities at sea and had taken greater numbers of persons on board than they were supposed to. Sea Watch brought actions for the annulment of these measures before the Regional Administrative Court of Sicily, which decided to refer questions of interpretation of EU law to the Court of Justice. Directive 2009/16 on port State control, the EU law concerned, is a typical security directive adopted in the context of shipping casualties and pollution of the seas and coastlines of Member States. This directive is aimed at ensuring strict compliance with international conventions and EU legislation on maritime safety, maritime security, protection of the marine environment and on-board living and working conditions of ships. In its decision, the Court rules that the port State may subject NGOs’ ships to inspections if there are ‘serious indications capable of proving that there is a danger to health, safety, on-board working conditions or the environment’.<fnref n="128" /> However, it does not have the power to demand proof that those ships hold certificates other than those issued by the flag State. By contrast, it may impose corrective measures relating to safety, pollution prevention and on-board living and working conditions, provided that those corrective measures are justified by the presence of deficiencies. Detention is allowed only if such deficiencies pose a clear threat to safety, health or the environment.

Was the Court ever concerned with the condition of the migrants in this case? Such concern surfaces in two points of the judgement. First, it lies in the reference to international law, in particular the Convention on the Law of the Sea and International Convention for the Safety of Life at Sea. According to the Court, the UNCLOS and SOLAS conventions establish the obligation to provide assistance to persons in danger or distress and prohibit the possibility of verifying the presence of rescued persons on board during security inspections. Second, mindful of the limited grasp of law in this field, the Court decided to add, *obiter dictum*, that the Member States are required to consult each other and to cooperate sincerely in the exercise of their respective powers of control: ‘those various requirements are all the more important given that, as EU law currently stands, there are no provisions specifically governing the systematic activities relating to the search for and rescue of persons in danger or distress at sea at issue in the main proceedings’.<fnref n="129" /> These are requirements targeting Member States’ behaviour with a view to preserving the EU institutional ecosystem.

This *Sea Watch* judgement frames the situation of migrants in the Mediterranean as a problem of governability. What this framing completely overlooks are the condition of the migrants (origins, journey, affects, projects) and the practices of interaction and solidarity established between the rescuers and the persons rescued. This may be for strictly procedural reasons, such as the limited scope of EU law and the limited jurisdiction of the Court. Yet, the reasoning in this case is illustrative of a broader pattern whereby the migrant condition is seen through the lens of the state and its controlling powers. EU law appears oblivious to migrants’ experiences and practices of solidarity with them.

This is confirmed in a recent opinion of Advocate General Richard de la Tour concerning the criminalisation of the act of facilitating irregular migration.<fnref n="130" /> O.B is a Congolese asylum-seeking woman accused of having attempted to bring her eight-year-old daughter and 13-year-old niece into

<footnote n="127">¹²⁷On ‘grievability’, J Butler, *Frames of war: When is life grievable?* (Verso 2016).</footnote>

<footnote n="128">¹²⁸Joined Cases C-14/21 & C-15/21 *Sea Watch* EU:C:2022:604.</footnote>

<footnote n="129">¹²⁹*Ibid.*, para 158.</footnote>

<footnote n="130">¹³⁰Case C-460/23 *Kinsa* EU:C:2025:392.</footnote>
Italy with false documents. The question posed to the Court is whether the obligation to criminalise
any form of facilitating irregular entry even if carried out for non-profit purposes is compatible with
EU fundamental rights. The Advocate General considers that, under Directive 2002/90 defining the
facilitation of unauthorised entry, the act by which a mother contributes to the unauthorised entry of
two minors, members of her family, constitutes an offence. In his view, 'it is evident that facilitating
illegal immigration constitutes a serious threat to the preservation of public order and border
management', independently of any circumstances. Criminalisation is justified on the basis of border
management and control: 'By bringing all acts contributing to the unauthorised entry of third-country
nationals into the territory of a Member State within the scope of intervention of the public authorities
and, in particular, within the scope of action of the criminal authorities, the EU legislature ensures not
only better control of migratory flows, but also greater surveillance of those acts'.'<fnref n="131" /> As to the scope of
criminalisation and possible exceptions to it, the Advocate General holds that 'the definition of
mitigating and aggravating circumstances and penalties reflects both social realities and legal
traditions, which vary not only between Member States, but also over time'.<fnref n="132" /> This reference to 'social
realities' is most intriguing. It means that this area of law lies within the remit of Member States. But
it is also evidence of the fact that EU law regularly sees social reality as the outcome of an
institutional construct that exists by virtue of State law.

Moreover, in this Advocate General's opinion, fundamental rights invoked by the referring
Court are completely discarded.<fnref n="133" /> The existential and emotional aspects of the case, much present
in the preliminary reference, are obscured. Yet, forms of vulnerability, family and emotional ties,
relationships of dependency, risks related to separation are categories that are not unknown to EU
law. These categories feature in the Court's case law on Union citizenship,<fnref n="134" /> in which they trigger
the process of identification to other social individuals. However, under EU law, such categories
clearly do not apply to migrants. In the context of migration, EU law does not allow for the process
of identification to unfold. Migrants are only protected as far as their basic needs are concerned,<fnref n="135" />
and as long as they are actively integrating into the national fabric.<fnref n="136" /> Their own specific forms of
identification with Europe do not find home in EU law.<fnref n="137" /> As a result, they are excluded from
society as a framework for identifying with others' image and self-identification.

The Court's judgement departs from the Advocate General's opinion. It holds that *'the conduct of a person who brings into the territory of a Member State, in an unauthorised manner, minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, cannot fall within the scope of the general offence of facilitation of unauthorised entry (...), including where that person has himself or herself entered that territory in an unauthorised manner'*.<fnref n="138" /> Yet, remarkably, this is not on the basis of the protection of vulnerable migrants. The Court relies on respect for family life and the rights of the child. It is committed to protecting European values centered on family ties and child welfare. It does not recognise the lawfulness of acts of solidarity with migrants. This reflects a form of empathy for ourselves as Europeans forming an 'ethical community', not a form of identification with others.<fnref n="139" />

<footnote n="131">¹³¹Opinion of Advocate General Richard de la Tour in Case C-460/23 *Kinsa* EU:C:2024:941, para 83.</footnote>

<footnote n="132">¹³²*Ibid.*, para 73.</footnote>

<footnote n="133">¹³³*Ibid.*, para 53.</footnote>

<footnote n="134">¹³⁴'E Dubout, 'The European Form of Family Life: The Case of EU Citizenship' 5 (2020) European Papers 3–11; F Rusticcia, 'Ties that Bind and Ties that Compel: Dependency and the *Ruiz Zambrano* Doctrine' 60 (2023) Common Market Law Review 1227.</footnote>

<footnote n="135">¹³⁵Case C-519/18 *TB v. Bevándorlási és Menekültügyi Hivatal* EU:C:2019:1070, para 75.</footnote>

<footnote n="136">¹³⁶See recently Case C-158/23 *Keren* EU:C:2025:52.</footnote>

<footnote n="137">¹³⁷For an inquiry into migrants' specific forms of identification, J Schapendonk, *Finding Ways Through Eurospace. West African Movers Re-viewing Europe from the Inside* (Engels 2020).</footnote>

<footnote n="138">¹³⁸Case C-460/23 *Kinsa* EU:C:2025:392, para 51.</footnote>

<footnote n="139">¹³⁹On the concept of 'ethical community', see A Honneth, *Ce que social veut dire* (1). *Le déchirement du social* (Gallimard 2013) 294.</footnote>
Interestingly, the reference to 'both social realities and legal traditions' comes from a judgment of 30 April 2024, *Procura della Repubblica presso il Tribunale di Bolzano*, issued in the field of law enforcement and data retention.<fnref n="140" /> Under EU law, individuals are protected against intrusions into private life through data surveillance.<fnref n="141" /> This is not just because private autonomy is at stake. The protection is based on the fact that 'access to such a set of data is liable to allow very precise conclusions to be drawn concerning the private life of the data subject, such as his or her everyday habits, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of that data subject and the places he or she frequents socially'.<fnref n="142" /> The Court conceives data subjects as social individuals able to interact and participate in society. The subjection to data collection and retention, which individuals are not unable to see and understand and which is liable to reproduce and intensify social, gender or racial inequalities, 'is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance'.<fnref n="143" /> Such a feeling harmfully interferes with the process of socialisation.<fnref n="144" /> It is established case law that, irrespective of the subsequent use made of traffic and location data, the retention of those data 'constitutes, in itself, an interference with the fundamental rights to respect for private life and protection of personal data, enshrined in Articles 7 and 8 of the Charter, irrespective of whether the information in question relating to private life is sensitive or whether the persons concerned have been inconvenienced in any way on account of that interference'.<fnref n="145" />

This case law has been met with strong resistance, in particular in the field of law enforcement and police use of data. In a recent case concerning access to traffic and location data collected by private service providers in order to identify the perpetrators of thefts of mobile phones, the Court first held its ground. It was adamant that 'only the objectives of combating serious crime or preventing serious threats to public security are capable of justifying serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter'.<fnref n="146" /> However, confronted with the main question of whether the crime of 'aggravated theft' enshrined in Italian law was to be regarded as 'serious crime' within the meaning of EU data protection law, the Court decided to refer to 'both social realities and legal traditions, which vary not only between the Member States but also over time'.<fnref n="147" /> Member States thus retain the prerogative of defining criminal offences. They are granted broad discretion in criminalising social behaviours. Notably, this clearly constitutes a deviation from the previous case law of the Court.<fnref n="148" /> It results in blurring the line between social deviance and serious crime.<fnref n="149" /> In essence, this decision encourages a form of evasion of reality paradoxically in the name of 'social realities'. By presuming that social reality is

<footnote n="140">¹⁴⁰Case C-178/22 *Procura della Repubblica presso il Tribunale di Bolzano* EU:C:2024:371.</footnote>

<footnote n="141">¹⁴¹Joined Cases C-293 et 594/12 *Digital Rights Ireland* EU:C:2014:238; Joined Cases C-203 et 698/15, *Tele2 Sverige et Watson e.a.*, EU:C:2016:970; Case C-362/14 *Schrems* EU:C:2015:650.</footnote>

<footnote n="142">¹⁴²Case C-548/21 *Bezirkshauptmannschaft Landeck* EU:C:2024:830, para 93.</footnote>

<footnote n="143">¹⁴³Joined Cases C-203/15 and C-698/15 *Tele2 Sverige and Tom Watson and Others* EU:C:2016:970, para 100.</footnote>

<footnote n="144">¹⁴⁴T Matzner, 'Beyond data as representation: The performativity of Big Data in surveillance' 14 (2016) Surveillance & Society 197–210.</footnote>

<footnote n="145">¹⁴⁵Case C-470/21 *LQDN II* EU:C:2024:370, para 69.</footnote>

<footnote n="146">¹⁴⁶Ibid., para 36.</footnote>

<footnote n="147">¹⁴⁷Ibid., para 45.</footnote>

<footnote n="148">¹⁴⁸S Cabral, 'Balancing the Prevention, Investigation, Detection and Prosecution of Criminal Offences against Privacy and Data Protection' EU Law Live (November 26, 2024). As an unexpected result of this case law, the solution under the rights-based Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector aligns with the Court's case law under the security-based Directive 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data.</footnote>

<footnote n="149">¹⁴⁹On the concept of deviance, see A Ogien, *Sociologie de la deviance* (PUF 2012).</footnote>
enshrined in legal provisions and traditions, it draws social meaning exclusively from institutional knowledge and the ‘culture of control’ ingrained in law enforcement authorities.<fnref n="150" />

The notion that European society must identify sources of vulnerability and protect itself against polarisation has resulted in the proliferation of procedures of inspection, systems of surveillance, and mechanisms of automated identification. This particularly applies to migrants and those perceived as social deviants. It follows from the foregoing that EU law regulates this development by relying on an approach and form of knowledge which underplay or even curtail the psycho-social process of identification.

### C. Socio-political recognition

In 2020, the President of the Commission concluded her State of the Union address with the following words: 'I will not rest when it comes to building a Union of equality ... Because being yourself is not your ideology. It's your identity'. The EU is committed to a 'politics of identities' based on two premises. On the one hand, the different aspects of personal and embodied identity are recognised through a fight against discrimination on grounds such as sex, race, ethnic or social origin, language, religion, political opinion, disability, age or sexual orientation.<fnref n="151" /> On the other hand, this recognition is deemed necessary to achieve the objective of promoting integration and equality of individuals in European society as a whole. The EU assumes the existence of a shared understanding of reality in line with EU values. On this view, difference is recognised within a legal framework and political ideal referred to as the 'identity of the European Union'. The combination of these premises raises a larger issue: How to accommodate the recognition of social, sexual, racial, cultural, and religious differences vindicated by particular social groups while, on the other hand, relying on a understanding of society based on individual autonomy and liberal values? That is to say, European society is currently facing a problem classically addressed by theories of recognition.<fnref n="152" />

Claims for recognition addressed to the EU are of various sorts.<fnref n="153" /> One typical kind of claim builds on EU law as a traditional form of individual empowerment. It relies on free movement as a precondition for enjoying an autonomous life. *Mirin* is a case in which identity assigned and identity embodied differ.<fnref n="154" /> A person born in Romania was assigned a female gender at birth. After moving to the UK with his parents, he was allowed to change his first name and official title from female to male. He then obtained a gender identity certificate, a UK document confirming his male gender identity. On this basis, he requested that his city of birth record the change of his first name and gender identification in his birth certificate. However, the request was denied in Romania. The Court ruled in favour of the recognition of the name and gender identity acquired abroad. Relying on the precedent established in *Coman* and *Pancharevo*, it considered that the denial of recognition amounted to a restriction to the freedom of movement under Article 21 TFEU.<fnref n="155" /> Moreover, Romania's measure was in breach of Article 8 ECHR which 'protects a person's sexual identity as a constituent element and one of the most intimate aspects of his or her private life'.<fnref n="156" />

<footnote n="150">¹⁵⁰The concept of 'culture of control' is from D Garland, *The Culture of Control* (Oxford University Press 2001).</footnote>

<footnote n="151">¹⁵¹Directive 2000/43 against discrimination on grounds of race and ethnic origin; Directive 2000/78 against discrimination at work on grounds of religion or belief, disability, age or sexual orientation; Directive 2006/54 on equal treatment for men and women in matters of employment and occupation; Directive 2004/113 on equal treatment for men and women in the access to and supply of goods and services.</footnote>

<footnote n="152">¹⁵²On these theories, see L McNay, *Against Recognition* (Polity Press 2008).</footnote>

<footnote n="153">¹⁵³F Levrau, ‘Axel Honneth and the Recognition of Ethno-Cultural Immigrants Groups’ in NJ Walthrust Jones (ed), *Diversity and Turbulence in Contemporary Global Migration* (Brill 2013) 167–76.</footnote>

<footnote n="154">¹⁵⁴Case C-4/23 *Mirin* EU:C:2024:845.</footnote>

<footnote n="155">¹⁵⁵Case C-673/16 *Coman* EU:C:2018:385; Case C-490/20 *Pancharevo* EU:C:2021:1008.</footnote>

<footnote n="156">¹⁵⁶*Ibid.*, para 64.</footnote>
Interestingly, this solution is directly inspired by the case law of the Court in the field of recognition of surnames.<fnref n="157" /> The premise is that the non-recognition or misrecognition of a civil status acquired in another Member States is likely to generate a divergence in identity titles that could represent a 'serious inconvenience' for individuals concerned in everyday dealings.<fnref n="158" /> The aim is to protect the stability and continuity of individual lives that unfold in a transnational context. Yet, this should not be interpreted as affirmation of pure individualism: the protection cannot be triggered by 'a purely personal choice' to change name and status.<fnref n="159" /> It is subject to the condition that the individual concerned is willing to develop a 'genuine link' to the host society and conform to its value system.<fnref n="160" /> As such, it is a particular form of individualism.<fnref n="161" /> When transposed to cases of gender identity, this means that recognition is made subject to the choice of a transnational form of life as well as adopting a 'normal family life'.<fnref n="162" /> Thus standards of a communal life are reintroduced into an individualist framework of recognition. EU law derives recognition as much from an individual's understanding of personal autonomy as from an institutional understanding of what a 'normal' social life should be like.

There is a risk, however, to conflate these two perspectives. The Commission's infringement action against a Hungarian law that restricts children and young adults from accessing or being exposed to content that relates to LGBTIQ+ symbols or practices might be a good illustration of this.<fnref n="163" /> At issue is the protection of particular forms of self-identification against state interference. In this case, there is no doubt that the legislation at issue was in breach of the standards of tolerance and pluralism in a democratic society. In its action, the Commission has thus decided to partly rely on Article 2 TEU as a distinct ground of infringement. It considers that it was European society as a whole and as a community of values that is affected and therefore has to be defended.<fnref n="164" /> On this view, LGBTIQ+ persons are representing as forming a coherent group embodying EU values and identity. Such framing is problematic, as it occludes these persons' own understanding of everyday life and internal differentiations within this group. It blurs the difference between identity as lived and embodied on the one hand, and identity as institutionally assigned on the other hand. The recognition applies to the latter rather than the former.

One extreme case of blurring happens when the two identities are merely juxtaposed. This is what currently seems to happen in the developing case law concerning gender-based asylum claims.<fnref n="165" /> The issue raised in these cases is whether women and girls from Iraq and Afghanistan who embrace a 'Western-inspired lifestyle' qualify as 'protected social group' within the meaning of the EU refugee qualification Directive. The Court accepts this claim. However, it makes clear that the claim should be reformulated as meaning that 'those women genuinely come to identify with the fundamental value of equality between women and men and wish to continue to benefit from that

<footnote n="157">¹⁵⁷Case C-148/02 *Garcia Avello* EU:C:2003:539; Case C-353/06 *Grunkin et Paul* EU:C:2008:559.</footnote>

<footnote n="158">¹⁵⁸*Mirin*, above note 154, para 54.</footnote>

<footnote n="159">¹⁵⁹Case C-438/14 *Bogendorff* EU:C:2016:401, para 82.</footnote>

<footnote n="160">¹⁶⁰F Ristuccia, 'European identity through free movement law? The interactions between Union citizenship, free movement of persons, and EU values' Special Issue 1 (2024) Quaderni AISDUE.</footnote>

<footnote n="161">¹⁶¹A Skrbic, 'Mobile individualism: The Subjectivity of EU Citizenship' (48) (2019) Netherlands Journal of Legal Philosophy 15–28.</footnote>

<footnote n="162">¹⁶²Case C-673/16 *Coman* EU:C:2018:385, para 24; Opinion of Advocate General Kokott in Case C-490/20 *Pancharevo* EU: C:2021:1008, paras 60–2.</footnote>

<footnote n="163">¹⁶³Pending Case C-769/22 *Commission v. Hungary*. See, on this case, M Bonelli and M Claes, 'Crossing the Rubicon? The Commission's use of Article 2 TEU in the infringement action on LGBTIQ+ in Hungary' 30 (2023) Maastricht Journal of European and Comparative Law 3–14; L Kaiser, A Knecht and D Spieker, 'The Member States Embrace Article 2 TEU in Commission v Hungary' Verfassungsblog (26 November 2024).</footnote>

<footnote n="164">¹⁶⁴L Rossi, 'Concretised', 'Flanked', or 'Standalone'? Some Reflections on the Application of Article 2 TEU' 10 (2025) European Papers 1–24.</footnote>

<footnote n="165">¹⁶⁵Case C-646/21 K,L (*The Netherlands*) EU:C:2024:487; Joined Cases C-608/22 & C-609/22 AH, FN (*Austria*) EU: C:2024:828.</footnote>
equality in their daily lives'.<fnref n="166" /> Hence, in the Court's view, it is not about a particular culture but about fundamental EU values. The Court reasons that a woman who genuinely identifies with gender equality, 'in so far as it presupposes a desire to benefit from that equality in her daily life', can be regarded as belonging to a group worthy of protection. In other words, identification with and internalisation of EU values are turned into a 'legal standard'. This is a bold move, which certainly means progress and protection for these individual women. Yet, it means that EU values are turned into subjective dispositions – they are not just objective standards to assess institutional practices. Protection is granted to persons who can transgress 'the social, moral or legal norms' of the society of origin.¹⁶⁷ However, this form of recognition runs the risk of reification and alienation. The identification with EU values is considered part of a person's identity, 'capable of constituting a common background that cannot be changed'.<fnref n="168" /> This induces, in practice, forms of self-identification that are entrenched and, arguably, excessively intrusive.<fnref n="169" /> At this point, the recognition of difference results in European society recognising itself.

Such reasoning becomes particularly problematic when it comes to differences that are not easily subsumable under EU constitutional values. Religious difference, for instance, is addressed under Article 9 ECHR, reproduced in Article 10 of the Charter of Fundamental Rights of the European Union. These provisions indicate a balance to be struck between respect for religious freedom and protection of public order. In practice, this balancing act is based on two underlying assumptions: first, the notion that religious practice, including in its external manifestations, is a question of private preferences; second, the idea that European society is a secular society where religion is a passive attachment. However, such assumptions are challenged by claims for recognition expressed by certain religious groups present in European society, most prominently in the case of Muslims. Many Muslims in Europe are engaged in a process of re-affiliation to religion, which, in second and third-generation Muslims, is often associated with a desire to develop a communal life and a sense of social justice.<fnref n="170" /> In this context, rituals and the wearing of religious symbols are both an expression of faith and a part of a process of identification and socialisation. The question, then, is whether religious affiliation is recognised as a legitimate difference under the law of European society, or whether it is rather articulated as a form of political 'separatism' from prevailing social norms.<fnref n="171" />

The rulings concerning the ban on wearing the Islamic veil in the workplace are cases in point. The Court refuses, in principle, to consider that such bans constitute a direct discrimination within the meaning of Directive 2000/78 on equal treatment in employment and occupation.<fnref n="172" /> Instead, they are treated as cases of indirect discrimination. As a result, restrictions may be justified where there is 'a genuine need on the part of the employer'.<fnref n="173" /> This need is defined by reference to the 'legitimate wishes of customers or users' and the employer's freedom to pursue a 'policy of neutrality'.<fnref n="174" /> Moreover, a ban may be justified by 'the objective to avoid social conflicts, particularly in view of the tensions which occurred in the past in relation to religious beliefs'.<fnref n="175" /> Insofar as it manifests itself in society, religious practice is considered a factor of trouble and disorder. This

<footnote n="166">¹⁶⁶Case C-646/21, para 33.</footnote>

<footnote n="177">¹⁷⁷Case C-621/21 WS (Bulgaria) EU:C:2024:47, para 53.</footnote>

<footnote n="168">¹⁶⁸Ibid., para 45.</footnote>

<footnote n="169">¹⁶⁹For a striking illustration, see Judgment of the Hague District Tribunal of 18 December 2024, ECLI:NL: RBDHA:2024:21443.</footnote>

<footnote n="170">¹⁷⁰H Esmili, *La tradition des immigrés et de leurs enfants* (HEM Research Book 2024).</footnote>

<footnote n="171">¹⁷¹See, by way of example, the French Law combatting any form of 'religious separatism': Loi n°2021-1109 du 24 août 2021 confortant le respect des principes de la République (JORF no 0197 of 25 August 2021).</footnote>

<footnote n="172">¹⁷²It is only if the measure specifically targets the Islamic veil (Case C-188/15 *Bougnaoui* EU:C:2017:204, para 34) or any 'large-sized' religious signs (Case C-804/18 & C-341/19 *WABE e. a.* EU:C:2021:594, para 72) that the discrimination will be considered a 'direct discrimination'.</footnote>

<footnote n="173">¹⁷³Joined Cases C-804/18 & C-341/19 *WABE e. a.* EU:C:2021:594, para 64.</footnote>

<footnote n="174">¹⁷⁴Ibid., paras 64–5.</footnote>

<footnote n="175">¹⁷⁵Ibid., para 75; Opinion of Advocate General Collins in Case C-148/22 *Commune d'Ans* EU:C:2023:924.</footnote>
approach forecloses the recognition of the multiple identifications at play in this case. First, it denies the existence of religious subgroups in society. Muslim women are included into the broad group of workers on the grounds that separating religious belief from the more general manifestation of beliefs would provoke a ‘segmented approach’ and have ‘the result of creating subgroups of workers’.<fnref n="176" /> As analysed by Xenidis, there is a ‘universalistic undertone’ in the Court’s reasoning.<fnref n="177" /> Second, it fails to take proper account of the intersecting axes of discrimination by considering that ‘religious discrimination is disconnected from gender discrimination’.<fnref n="178" /> Third, by stating that ban is only ‘capable of causing particular inconvenience for such workers’, it obscures the fact that religion and faith are inner, active and reflexive aspects of these women’s lives.<fnref n="179" />

This is in sharp contrast with the recognition of LGBTIQ+ persons and asylum-seeking women and girls who identify with EU values. The EU law framework for recognition is therefore dichotomous: some social subgroups are recognised, others are not, depending on whether they are composed of individuals seen as capable of personal autonomy and amenable to embody or internalise EU values. This is because the work of recognition is carried out from an institutional perspective and not from ‘the perspective of the lived reality of embodied social relations’.<fnref n="180" /> The question therefore is how to integrate this perspective into EU law.

## 4. European society as method

In the different fields roamed over so far, problems are raised that are not the mere transposition of social conflicts. Rather they arise out of the reconfiguration of Europe and its law. This reconfiguration involves a series of shifts that combine material and ideological elements: the restructuring of relations of production around a model of sustainable growth; the fashioning of social relations within the framework of a security ecosystem; an approach to social differentiation based on a politics of identity. Thus framed, Europe and its law are liable to generate specific problems that can be captured by the categories of social reproduction, psycho-social identification and socio-political recognition. As such, these problems involve not just abstract institutional entities but concrete individuals and potentially intersecting social groups such as miners, drivers, migrants, trans-gender persons, and Muslim women. Beyond the relations of domination and exploitation in which they may be entrenched, their relation to Europe is prevailingly one of alienation. The EU’s way of regulating a complex set of techno-social systems through systems of rules creates forms of obfuscation of individuals and social groups’ conditions of existence, whether it is living conditions beyond work, migrants’ journeys to Europe, or forms of queer and religious life.<fnref n="181" /> This generates a sense of social insecurity that certain political forces are prone to exploit, including with the intention of pitting the working class and minority groups against each other.

The source of alienation is to be found in a distinctive pattern that has emerged from the analysis. It is attributable to a reduction of social practices and conditions of existence to institutional practices and knowledge. One case where this is made conspicuously apparent is the Court’s judgement on the ritual slaughter of animals intended for human consumption. In 2017, the Flemish government in Belgium decided to ban the ritual slaughter of animals without prior

<footnote n="176">¹⁷⁶Case C-344/20 S.C.R.L. EU:C:2022:774, para 55. See also N Dube, ‘A Typology of Comparators and Comparisons in EU Equality Law’ 62 (1) (2025) Common Market Law Review 49–64.</footnote>

<footnote n="177">¹⁷⁷R Xenidis, ‘From religious neutrality to religious discrimination in the public and the private sector: *Commune d’Ans* and S.C.R.L.’ 62 (2025) Common Market Law Review 547.</footnote>

<footnote n="178">¹⁷⁸N Dube, ‘*OP v. Commune d’Ans*’: When equality, intersectionality and state neutrality collide’ 31 (2024) Maastricht Journal of European and Comparative Law 433–44. See also R Xenidis, ‘Intersectionality from critique to practice: Towards an intersectional discrimination test in the context of ‘neutral dress codes’’ 2 (2022) European Equality Law Review 21.</footnote>

<footnote n="179">¹⁷⁹Joined Cases C-804/18 & C-341/19 WABE e. a. EU:C:2021:594, para 64. para 53.</footnote>

<footnote n="180">¹⁸⁰McNay, above note 152, 5.</footnote>

<footnote n="181">¹⁸¹On the notion of obfuscation/invisibilisation in social sciences and social theory, C Ferey, E Levine and Z Zoubir, ‘L’invisibilité sociale en question’ 19 (2024) *Terrains/Theories*.</footnote>
stunning, on the grounds of protecting animal welfare. However, under Jewish and Muslim rites, stunning the animal before slaughter is prohibited. In *Centraal Israëlitisch Consistorie van België, Unie Moskeeën Antwerpen and Others*, the Court sided with the Flemish government.<fnref n="182" /> It held that ‘*the requirements of Article 13 TFEU*’, which lays down the principle of incorporating the welfare of animals as sentient beings into all the Union’s policies, prevails over ‘*Jewish and Islamic religious precepts*’. Three key arguments were put forward: firstly, animal welfare is recognised as EU value ‘*to which contemporary democratic societies have attached increasing importance for a number of years*’. Second, account should be taken of ‘*national perceptions*’ and the ‘*social context specific to each Member State*’, some of which support greater protection of animals. Third, the Court draws on the ‘*scientific consensus*’ that prior stunning is the best way to reduce the suffering of animals at the time of killing. Union values, state knowledge based on majoritarian social perception, and modern science: these three elements form the normative basis of the judgement. In practice, this approach obscures the categories through which religious people apprehend their rituals. In light of the foregoing, it should be clear that these normative elements are to be understood as *epistemological* grounds. They are the main categories through which social practices are approached under EU law.

The difficulties with Europe and its law ultimately boil down to one conceptual challenge: incorporating into the law of European society an ontology and epistemology that do not only account for the material fact of belonging together within a framework of socio-technical and normative systems, but also do justice to the experiential and existential dimensions of diverse social groups in Europe. The integration of their lived experiences, defined as a set of social practices and categories through which they represent their own conditions of existence, is crucial to establish a proper account of European society. To achieve this, a refined articulation of materialist and existentialist approaches to European law is needed. In this regard, Iris Marion Young’s idea of thinking the ‘lived body’ and ‘social structure’ together provides a valuable source of inspiration.<fnref n="183" /> Young argues that the situation of women should be investigated by articulating the concept of lived body, which refers to ‘*a physical body acting and experiencing in a specific sociocultural context*’, with a concept of social structure, which denotes ‘*the confluence of institutional rules and interactive routines, mobilization of resources, and physical structures, which constitute the historical givens in relation to which individuals act, and which are relatively stable over time*’. This type of articulation is what we need to elaborate a thicker concept of European society that may then be used to critically assess the development of Europe and its law. Arguably, the transposition of this analysis to the specific context of European society requires a combination of ‘new materialisms’<fnref n="184" /> with new forms of existentialism.<fnref n="185" /> With the first set of theories, we should be able to make sense of the co-integration of material contexts, social-technical systems and political ideologies; with the second, we may attempt to decipher people’s affective, embodied, imaginary and conceptual engagements with the world and on earth. Moreover, in Europe, both sides are defined by an insecure sense of social reality: on the one hand,

<footnote n="182">¹⁸²Case C-336/19 *Centraal Israëlitisch Consistorie van België e.a.* EU:C:2020:1031. The same case reached the European Court of Human Rights in 2024. The Flemish government was then joined by the Wallonia government: ECtHR, 13 February 2024, *Executief van de Moslims van België et al v Belgium* (App no 16760/22, 16849/22, 16850/22 et al.). The European Court of Human Rights adopted a broadly similar solution to that of the Court of Justice, following the same kind of reasoning and relying on the same references.</footnote>

<footnote n="183">¹⁸³IM Young, ‘Lived Body vs. Gender: Reflections on Social Structure and Subjectivity’ in Young, *On Female Body Experience: ‘Throwing Like a Girl’ and Other Essays* (Oxford University Press 2005).</footnote>

<footnote n="184">¹⁸⁴D Coole and S Frost, *New materialisms. Ontology, Agency, and Politics* (Duke University Press 2010); I Bakker and S Gill (eds), *Power, Production and Social Reproduction. Human In/Security in the Global Political Economy* (Palgrave 2003); J Hohmann, ‘Diffuse subjects and dispersed power: New materialist insights and cautionary lessons for international law’ 34 (2021) Leiden Journal of International Law 585–606.</footnote>

<footnote n="185">¹⁸⁵T Griffin (ed), *The New Existentialism* (Les presses du reel 2017); A Schultz, ‘A New Existentialism for the Anthropocene. How the Climate Crisis has changed Being’ (12 June 2024, online); G Olson, *From Law and Literature to Legality and Affect* (Oxford University Press 2022).</footnote>
the complex materiality of Europe makes it ever more difficult to get a simple grip on social reality; on the other hand, more and more people in Europe experience a feeling of loss and ‘placelessness’.<fnref n="186" /> It is only an acute description of these combined elements based on the knowledge produced by social sciences and social theory that we can hope to really cope with the problems of European society.

Finally, there remains the challenge to turn these theoretical tools into concrete legal tools and techniques.<fnref n="187" /> It is certainly the case that EU traditional techniques revolving around a balancing of interests against the background of broad EU objectives and values, reliance on institutional structures of knowledge production, and holistic forms of reasoning privileging institutional stability are not the right way to account for the problems European society is facing. On the contrary, they have proven to make EU law insensitive to social issues inherent to the material reproduction of European society, and ultimately unaware of diverse forms of intelligibility about social existence developed by various social groups. EU law seems to operate under the constant fear of social division and disorder. With a view to ensuring social peace, it is led to adopt a ‘view from nowhere’, ie, a view that discards the specifics of individuals’ and groups’ position in society.<fnref n="188" /> Now, it is clear that the different kinds of alienation that structure European society and emerge from its law are identified in terms of groups, whether they are based on class, race, sex, gender, the disabled, the elderly, etc. Despite its commitment to fight against discrimination, European law is at pains to account for group differentiation.<fnref n="189" />

European law has developed a reductionist way of bringing the diverse social groups coexisting in Europe together, one that reduces ‘*the basic terms of social life*’ to institutional forms of distribution, cooperation and recognition.<fnref n="190" /> The primary task would be to broaden its knowledge about European society. To this effect, it may rely to a certain extent on its own ‘hidden’ resources, provided these are properly identified and thematised. Thus, the notion that the conditions of geographical and social isolation of workers from their usual environment must be taken into account to address social reproduction issues is present in the Court’s case law about posting workers as well as removed and nomad workers.<fnref n="191" /> For instance, the notion that ‘individual circumstances’, including emotional forms of affiliation within social groups, relationships of dependency between members of the group, and forms of solidarity with other groups, must be taken into account has been developed in the Court’s jurisprudence.<fnref n="192" /> This may help address identification issues. It is also established that, in its past case law involving recognition issues, the Court had no difficulty to consider discrimination arising from different grounds, thereby opening the way to analyzing recognition issues through the lens of intersectionality.<fnref n="193" /> European law already contains some conceptual and normative resources to resist its own tendency to reduce social reality. However, in order to account for social life in Europe on its own terms, it should be

<footnote n="186">¹⁸⁶A Reckwitz, 'The Challenge of Loss' (January 2023, online); E Relph, *Place and Placelessness* (London, Pion, 1976).</footnote>

<footnote n="187">¹⁸⁷See, facing a similar challenge, A Knop, R Michaels and A Riles, 'From Multiculturalism to Techniques: Feminism, Culture, and the Conflict of Laws Style' 64 (2012) Stanford Law Review 589–656.</footnote>

<footnote n="188">¹⁸⁸T Nagel, *The View from Nowhere* (Oxford University Press 1986).</footnote>

<footnote n="189">¹⁸⁹This is striking in the case of difference based on race and ethnic origin: See G de Búrca and V Passalacqua, 'The Curious Absence of Race Discrimination Litigation in EU Law' (forthcoming 2025); L Azoulai, 'Living together in Europe's polarised societies. Navigating the ECtHR and CJEU case law' EUI Law Working Paper 2024/18.</footnote>

<footnote n="190">¹⁹⁰The expression and the inspiration come from R Mangabeira Unger, 'The Critical Legal Studies Movement' 96 (1983) Harvard Law Review 563–675.</footnote>

<footnote n="191">¹⁹¹Case C-396/13 Sähköalojen ammattiliito EU:C:2015:86. See further L Azoulai, 'Mobilité, collectivité, territorialité (aspects de droit social de l'Union européenne)' in *Liber amicorum en hommage à Pierre Rodière. Droit social international et européen en mouvement* (LGDJ 2019) 11–25.</footnote>

<footnote n="192">¹⁹²Case C-34/09 Ruiz Zambrano EU:C:2011:124. See further A Husser, *La situation personnelle dans la jurisprudence de la Cour de justice de l'Union européenne* (PhD thesis Strasbourg University 2023, online).</footnote>

<footnote n="193">¹⁹³R Xenidis, 'From religious neutrality to religious discrimination in the public and the private sector: *Commune d'Ans* and S.C.R.L.' 62 (2025) Common Market Law Review 553, referring to Case C-258/17 E.B. v Versicherungsanstalt öffentlich Bediensteter BVA ECLI:EU:C:2019:17.</footnote>
open to integrate into its technical and conceptual apparatus additional resources and critical knowledge drawn from social sciences and social theory.<fnref n="194" />

I briefly alluded earlier to a question I called ethical: *Is this the way we want to live now?*
I suppose that I was led to this broad question as a way to avoid the vexing underlying question of
the theoretical and technical means required to redress the course of the law of European society.
This question cannot be eluded any more. Yet, in the endeavour to explore these means, the ethical
concern may be retained as a methodological compass, as a way to orient ourselves when inquiring
about the law of European society. This concern takes us away from approaches which take the
position that we already have the conceptual repertoire for defining the normative basis of Europe
and its law: it is to be found in Article 2 TEU and the task is then to develop a European
constitutional theory to ensure that institutions, individuals and social groups operate under the
standards enshrined in that provision.<fnref n="195" /> But it also departs from approaches which endeavour to
re-imagine Europe and suggest that this re-imagining is revealed through a radical questioning of
European law or even a complete retreat from it. This re-imagination exercise has the potential to
reopen European society to a new consideration and self-understanding.<fnref n="196" /> However, it also takes
us far from the historically specific conditions, structures and everyday life of European
societies.<fnref n="197" /> Instead, our approach accepts to immerse itself into the legal materials fashioning
these conditions, and it assumes to carry out a work of description.<fnref n="198" /> But, rather than relying
blindly on the categories and standards of European law, it proposes to confront them with
categories imported from social theory in order to uncover the material and ideological
contradictions upon which the law of European society is based.<fnref n="199" /> It thus aims at foregrounding
the lived experiences that this law tends to overlook despite its own commitment to provide
stability, security, and social cohesion. The hope is not to reconnect to an objective reality – this
would be pure fantasy –, but to secure ‘existential territories’ for individuals and social groups in
Europe.<fnref n="200" />

It is certainly true that, by relying on a conceptualisation based on society and social theory, this approach remains committed to an idea of social formation that maintains an epistemic privilege to the whole over the parts. It assumes that what we need most at the current stage of fragmentation and polarisation of European society is a view from the whole. It accepts to work in the direction of a more reflexive integration of material and existential interdependencies that bind parts of European society together.<fnref n="201" /> However, I hope it also makes clear that this does not mean that the parts should be forced to integrate into a pre-existing institutional whole. Such an approach requires a critical

<footnote n="194">¹⁹⁴This resonates with Unger’s old call for developing ‘a credible theory of social transformation’ and ‘a conception of a proper relation of law to society’: R Mangabeira Unger, *supra* note 190 at 583-4. See more recently, but with a new ‘radical’ orientation, S Moyn, ‘Reconstructing Critical Legal Studies’ 134 (2024) The Yale Law Journal 77-122. On the respective scope of social sciences, social theory and theory of society, see A Reckwitz, H Rosa, *Late Modernity in Crisis: Why We Need a Theory of Society* (Wiley 2023).</footnote>

<footnote n="195">¹⁹⁵A Von Bogdandy, *The Emergence of European Society Through Public Law. A Hegelian and Anti-Schmittian Approach* (Oxford University Press 2024); D Spieker, *EU Values Before the Court of Justice: Foundations, Potential, Risks* (Oxford University Press 2023).</footnote>

<footnote n="196">¹⁹⁶M Bartl, *Reimagining Prosperity: Toward a New Imaginary of Law and Political Economy in the EU* (Cambridge University Press 2024); J Komarek (ed), *European Constitutional Imaginaries. Between Ideology and Utopia* (Oxford University Press 2023); I Isailovic, ‘Critical approaches in EU law – still a blindspot’ (September 2023, online).</footnote>

<footnote n="197">¹⁹⁷S Laugier, ‘From the Ordinary to the Everyday’ 33 (2024) *Qui parle* 17–34; Das, ‘The Boundaries of the ‘We’: Cruelty, Responsibility and Forms of Life’ 17 (2016) Critical Horizons 168–85.</footnote>

<footnote n="198">¹⁹⁸A Orford, ‘In Praise of Description’ 25 (2012) Leiden Journal of International Law 609–25.</footnote>

<footnote n="199">¹⁹⁹This is close to what is called by certain social theorists ‘immanent critique’. See R Jaeggi, *A Critique of Forms of Life* (Harvard University Press 2018).</footnote>

<footnote n="200">²⁰⁰In Guattari’s work, the notion of ‘existential territory’ refers to a dimension of subjectivity that consists in providing meaning and habitability to singular individuals and social groups in a context characterised by domination, exploitation or destruction: F Guattari, *The Three Ecologies* (The Athlone Press 2000).</footnote>

<footnote n="201">²⁰¹Similarly, relying on social sciences rather than law, J Christ, *L'oubli de l'universel. Hegel critique du libéralisme* (PUF 2021).</footnote>
reflection about the possibilities of accommodating social, sexual, cultural, and religious differences. Yet, in the end, this is about legal recognition and, as such, there is no doubt that it involves a certain dose of institutional domination. For this reason, an approach based on European society may well call for an extra effort that consists in considering the materials addressed in this piece from the other end, from the other side of European society, whether it is called ‘post-colonial’ or otherwise, and which conceives Europe’s social space as a site of systemic inequalities and entrenched systems of oppression.<fnref n="202" /> Thus, starting with an exploration of the theme of European society, we are left with two approaches, both of which may be necessary even if they are opposed. One is the approach developed in this piece. It assumes the possibility of ‘disalienated law’ in Europe in the midst of the existential fractures left by institutional modes of thinking and acting, and it considers that making this assumption is the only way to attend the internal normativity of lived experiences with law and make them sustainable and coexisting. The other or counter-approach would argue, to the contrary, that it is not enough to expose the contradictions and wrongdoing of European law; there is a necessity to question Europe and its law as a whole and as such, insofar as they are committed to the perpetuation of systemic forms of domination, exploitation and destruction. In Europe, we now see these two approaches taking form. They are separated and juxtaposed, but they reflect a plurality of demands that every European lawyer cannot fail to feel himself subjected to, unless she or he is prepared to abandon Europe as horizon for life and thinking.

**Competing interest.** The author has no conflicts of interest to declare.

<footnote n="202">²⁰²H Eklund, ‘Colonialism and EU law. Critique and the Future’ Verfassungsblog (21 March 2024); E Balibar, ‘Intersectionnalité et différences anthropologiques’ Les Temps qui restent (18 February 2025).</footnote>