In this issue

• Author: Harm Schepel,Joana Mendes
• DOI: http://doi.org/10.1111/eulj.12325
• Published date: 01 May 2019
• Date: 01 May 2019

EDITORIAL

In this issue

It is hard to overestimate the influence that the thesis of Integration‐Through‐Law (ITL) has had on European legal

scholarship. Sweeping in scope, elegant in theoretical framework, articulated and championed by the intellectual greats

of our time, it has not only held a prominent place in the collective European legal imagination but also seemed, for a very

long time, simply ‘right’as a description of the way the process of integration was unfolding. In the course of history, it is

inevitable –and an unqualified good –that dominant paradigms get challenged. For some time now, as the archives

open, as the ‘quants’get to work, as historians and social scientists produce qualitative data and engage in micro‐level

sociological analysis, some of the empirical claims and assumptionsunderlying the construct of ITL are being questioned

in research scattered around history, sociology and political science as much –or more –as in the legal literature. We

owe a debt of gratitude to Rasmussen and Sindbjerg Martinsen, prominent scholars in this vital field, for pulling these

strands of work together in what is simultaneously a fascinating re‐telling of the story of European (legal) integration, a

nuanced alternative interpretation of the development of European law and a stark reminder of the lack of self‐aware-

ness of European legal scholarship in its role in constructing legitimising ‘constitutional’discourses. In a related effort,

Petrićdusts off the covers of legal realism and neo‐institutionalism to produce what is, counterintuitively perhaps, a

fresh and bold assessment of the Court's strategic use of ‘general principles of law.’

At a different level of analysis and with different tools, Colombo's article contributes to sharpen one's understanding

of a legal system at times torn between centralisation and fragmentation and evolving under the impulse of administra-

tive reforms. In the interstices of the constitutional framework, the Commission and MemberStates have changed roles

in the enforcement of state aid rules in a managerial trend of decentralisation. Uneven administrative capacities,

interpretative complexity and reliance on polycentric networks involving public and private actors brought inevitable

complications which the Commission sought to address via administrative integration. Colombo shows that the

Commission's influence persists as part of a transnational epistemic community of state aid experts and, at the same

time, a differentiated administrative space has emerged where Member States occupy uneven positions that may

reinforce national political interests. Lettanie, in turn, examines the powers of the European Central Bank under the

European Stability Mechanism (ESM) Treaty according to a sliding scale of delegation, whereby its position may shift

from agent to trustee, in contrast with its formally assigned role under that Treaty. Bridging two main theories on del-

egation to non‐majoritarian institutions, she contends that neither principle‐agent nor fiduciary theory can adequately

explain the institutional position of the ECB under the ESM Treaty. Boute and Zhang delve into a legal and economic

analysis of the EU and Chinese EmissionsTrading Schemes (ETS), questioning the ability of markets to produce low‐car-

bon investments and, hence, their ability to address climate change. The Chinese ETS, influenced by the EU's experi-

ence, applies to the world's largest emitter of greenhouse gases. Boute and Zhang's article examines the implications

of the innate regulatory dependence of ETS to the ability of markets to determine the price of carbon allowances, as well

as the consequences of regulatory intervention to correct surpluses resulting from the over‐allocation of allowances.

Comparing the EU and China, they show the relevance of institutional contexts for the functioning of environmental

markets. Their analysis sheds critical light on the credo of market instruments as a more flexible and cost‐efficient alter-

native to command and control mechanisms in supporting environmental protection.

We open this issue, however, with the protection of property under the European Convention of Human Rights.

In historical deconstruction and conceptual reconstruction, Mattei, Albanese and Fisher show the contingency of

dominant notions of individualised property rights and point the way towards a relational conception of protection

DOI: 10.1111/eulj.12325

228 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:228–229.wileyonlinelibrary.com/journal/eulj