The Rule of Reason in European Citizenship

Abstract:  This article reviews the European Court of Justice's case-law on European citizenship in the light of aspects of the rights theories of Ronald Dworkin and Robert Alexy. More specifically, the free movement right in Article 18(1) EC is conceptualised as a Dworkinian principle and as a prima-facie right or 'optimisation precept' in Alexy's sense. Against this backdrop the article argues that Article 18(1) can best be interpreted by drawing an analogy with the economic free movement provisions. The central argument is that the rule of reason also applies to European citizenship, or that there is a rule of reason in European citizenship. The analogy encompasses both the definition of the scope of Article 18(1) and its limitations. With regard to the latter, it is contended that there is no conceptual distinction between the 'limitations' and 'conditions' referred to in that provision. Particular emphasis is placed on the recent case-law concerning the question of access to welfare benefits. In this regard it is suggested that the notion of a 'structural link' constitutes both a threshold criterion to trigger the prima-facie right in Article 18(1) as well as a benchmark for assessing the degree of solidarity owed to the migrant citizen. The rule of reason approach leads to the stipulation of a thin, juridical conception of European citizenship that does not rely in any way on thick, essentialist properties.     

European Union Citizenship: Writing the Future

Abstract:  EU citizenship has matured as an institution, owing to a number of important interventions by the European Court of Justice and legislative initiatives, such as the Citizenship Directive 2004/38/EC, which has recently entered into force. In this article, I critically examine minimalist and cosmopolitan conceptions of European citizenship and argue that once we dispense with the preoccupation of assigning primacy to a specific level of citizenship and establishing some kind of hierarchy among them, we can begin to address the questions and issues that really matter. Among these are the future governance of citizenship and the design of a more inclusive, multilayered and multicultural conception of citizenship. European citizenship entails a number of fruitful ideas for a more ambitious transition to a post-national tableau and can be the prototype for institutional experimentation on citizenship on a global scale.     

Citizenship of the European Union—A Legal Analysis

Abstract:  The aim of this article is to present a legal analysis of the concept of citizenship of the EU. This concept was considered by some to be embryonic in the original Community Treaties, but was first expressly incorporated into the Treaties by the Treaty on European Union, signed at Maastricht on 7 February 1992. In the case-law of the European Court of Justice, which has given citizenship a content going beyond the express Treaty provisions, the concept is closely related to other basic concepts, including free movement of persons, the prohibition of discrimination on grounds of nationality and the protection of fundamental rights. This article seeks to review the case-law, to disentangle citizenship from other related concepts, and to determine what added value citizenship has brought to the Treaties and what the potential and the proper limits of the concept might be.     

Between EU Constitution and Individuals' Self: European Citizenship

Law and Philosophy -     

Democracy,Subsidiarity, and Citizenship in the ‘European Commonwealth’

Is there a ‘constitutional moment’in contemporary Europe? What if anything is the constitution of theEuropean Union; what kind of polity is the Union? The suggestionoffered is that there is a legally constituted order, and that asuitable term to apply to it is a‘commonwealth’, comprising a commonwealthof ‘post-sovereign’ states. Is it a democraticcommonwealth, and can it be? Is there sufficiently ademos or ‘people’ for democracy to be possible?If not democratic, what is it? Monarchy, oligarchy, ordemocracy, or a ‘mixed constitution’? Argued: thereis a mixed constitution containing a reasonableelement of democratic rule. The value of democracy isthen explored in terms of individualistic versusholistic evaluation and instrumental versus intrinsicvalue. Subsidiarity can be considered in a similarlight, suggestively in terms of forms of democracyappropriate to different levels of self-government.The conclusion is that there is no absolute democraticdeficit in the European commonwealth.

     

关于正确理解和使用概念中的几个问题

传统逻辑主要是研究推理和论证的科学。从思维的逻辑形式来看,概念是思维的最小单位,是构成判断和推理的基本要素,能否准确理解和使用概念,是正确地进行判断和推理的必要条件。本文主要针对理解和使用概念中的三个问题即概念与语词的关系问题,概念的内涵与外延问题;集合概念和非集合概念问题;进行了分析。     

Rules for Rights: European Law,Health Care and Social Citizenship

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.     

EU Citizenship and Political Identity: The Demos and Telos Problems

Citizenship is the cornerstone of a democratic polity. It has three dimensions: legal, civic and affiliative. Citizens constitute the polity's demos, which often coincides with a nation. European Union (EU) citizenship was introduced to enhance ‘European identity’ (Europeans’ sense of belonging to their political community). Yet such citizenship faces at least two problems. First: Is there a European demos? If so, what is the status of peoples (nations, demoi) in the Member States? The original European project aimed at ‘an ever closer union among the peoples of Europe.’ Second: Citizens are members of a political community; to what kind of polity do EU citizens belong? Does the EU substitute Member States, assume them or coexist alongside them? After an analytical exposition of the demos and telos problems, I will argue for a normative self‐understanding of the EU polity and citizenship, neither in national nor in federal but in analogical terms.     

On the Technology of Collective Identity: Normative Reconstructions of the Concept of EU Citizenship

The unsatisfactory present of European Union Citizenship and the unclear integration telos have given rise to many questions regarding the future of the European Citizen and the possibility of a European demos. On what sort of foundation can such a demos be constructed, and what will its relationship with national demoi be? This article presents the theoretical approaches on the future of EU citizenship, varying from civic‐centered thesis to social models, with a view to exploring the potential and dynamics of a different European identity based, not on supposedly common history and culture, but on newly‐founded shared political values. The aim is to go beyond the classic federation–confederation dilemma and look deeper into the process of creating an actual European demos.     

The Scope of Article 12 EC: Some Remarks on the Influence of European Citizenship

Abstract:  According to European Court of Justice (ECJ) case-law, the scope of application of the EC Treaty is engaged under the following conditions when the free movement of persons has been established: a cross-border connection is given; the Union citizen concerned resides legally in the host Member State; and the measure in question or the regulation has a connection with the residence or facilitates it. This condition will regularly be fulfilled since nearly every (national) regulation has a direct or indirect effect on the stay. A general link to primary or secondary law is, on the other hand, not necessary. Secondary law, however, can be significant in connection with the lawful residence. Even if partly vehement critiques have been formulated against this approach of the ECJ, it is convincing with regard to the aim of guaranteeing the free movement to European citizens.     

公民身份的扩展与欧盟区域人权保护原则

在全球化的推动下,区域政府间的政治联盟和公民身份都获得巨大发展,成为区域法治的重要力量.承载着自由权利、政治权利和社会权利的公民身份,为区域法治提供了合法性基础,从而成为区域人权保护原则的主体性力量;公民身份的结构性联系和基本权利的内在勾连意味着,公民身份的理念与制度的扩展必然要求在区域人权保护中坚持一体保护原则、多重保护原则和司法保护原则.     

CASES: European Arrest Warrant Cases and the Principles of Non‐discrimination and EU Citizenship

This case comment provides an analysis of the recent judgment in Wolzenburg (C‐123/08), delivered on 6 October 2009 not yet reported (Grand chamber) concerning the application of the EU principles of nondiscrimination and citizenship to the European Arrest Warrant cases. It also considers the impact of the Lisbon Treaty as well as the implications of the Citizenship Directive 2004/38/EC for this area of law.     

“礼”的概念的两个基本问题

本文从法学的角度探讨了有关“礼”的概念的两个基本问题：礼的渊源和精神。主要是：（１）分析了“礼”的渊源的复杂性质并进一步指出“礼”在渊源方面的特点反映了中国古代社会的特质;（２）学者普遍认为“礼”的精神或本质为差异性和等级性。