Judicial Europeanisation Through Deconstitutionalisation: The Case of the Analogous Application of the Citizenship Directive
(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 529-55 | Article | (Table of Contents) I. Introduction. – II. The Court’s ability to influence policies. – III. Research design – IV. The analogous application of the Directive – IV.1. Periods of residence completed...
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| Format: | Article |
| Language: | English |
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European Papers (www.europeanpapers.eu)
2024-10-01
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| Series: | European Papers |
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| Online Access: | https://www.europeanpapers.eu/en/e-journal/judicial-europeanisation-through-deconstitutionalisation-the-case-analogous-application-citizenship-directive |
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| Summary: | (Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 529-55 | Article | (Table of Contents) I. Introduction. – II. The Court’s ability to influence policies. – III. Research design – IV. The analogous application of the Directive – IV.1. Periods of residence completed under Directive 68/360 – IV.2. Free movers returning to their Member State of origin – IV.3. Free movers naturalised in the host Member State – V. National responses to the analogous application of the Directive – V.1. Periods of residence completed under Directive 68/360 – V.2. Free movers returning to their Member State of origin – V.3. Free movers naturalised in the host Member State – V.4. Same-sex spouses – VI. Judicial Europeanisa-tion through deconstitutionalisation – VII. Concluding remarks. | (Abstract) The Court of Justice of the European Union (the Court) is often hailed as a pioneer in integration through law. Existing scholarship on the Court’s judicial power overwhelmingly focuses on constitu-tionalisation and the horizontal policy dimension. As a result, the judicial techniques behind the Court’s policy-making and the ensuing implications for domestic policies remain largely understudied. The re-cent deconstitutionalisation of EU law begs the question as to whether the Court can steer national policies through its case-law without constitutionalising policy outcomes. The Article responds to this gap, by empirically investigating the legal techniques underpinning the Court’s policy-making in a de-constitutionalised manner and the ensuing implications for Member States’ policies. The analysis exam-ines the legal reasoning in all cases where the Court applies the provisions of Directive 2004/38 by anal-ogy, as an example of the deconstitutionalisation process, and traces the responses of all Member States to the Court’s jurisprudence. The findings illustrate that the creation of rights through the analo-gous application of Directive 2004/38 enables the Court to diplomatically balance competing interests and is successful in generating judicial Europeanisation in the domain of migration. |
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| ISSN: | 2499-8249 |