'We want you! But . . .' Recruiting Migrants and Encouraging Transnational Migration Through Progressive Inclusion

The article submits a proposal for outlining the present body of legal norms in the field of European migration and immigration law. To this end, it suggests understanding European migration and integration law as shaped by two principles: the principle of congruence between a state's territory, authority and citizenry and the principle of progressive inclusion. According to the established principle of congruence, the granting of rights to third‐country nationals (TCNs) is always geared to the ideal image that the persons permanently living on a territory are—in reality—part of the citizenry of that state and subject to the state's authority. According to the more recent principle of progressive inclusion, TCNs are to be gradually included into the host country's society by approximating their rights progressively to the rights of citizens. There are potential tensions between the two principles, which can be explained by the diverging philosophical and political concerns that they follow and the conceptions of migration that each uses. The article then goes on to explore the influence of both principles in current European migration and integration law. It brings forward the argument that current European migration and integration law is structured as much by the ‘older’ principle of congruence as by the principle of progressive inclusion. This assumption will be illustrated by the examples of the Long‐term Residents Directive (LTR Directive). Important provisions of the proposal for a framework directive intended to guarantee TCNs' equal treatment with EU citizens in social matters (Draft Framework Directive) and the directive on the highly skilled migrant workers (Blue Card Directive) will also be taken into account. Against the background of the highly contested legal field of migration and integration law, using the language of principles provides a useful tool not only for better grasping the current shape of this legal field, but even more for the legal discourse on the future development of European migration and integration law.     

‘Citizens’ and ‘Foreigners’ in EU Law. Migration Law and its Cosmopolitan Outlook

Migration has become a controversial subject across Europe and beyond. At the same time, the EU has built up an impressive set of rules for third‐country nationals over the past two decades, which—unlike the mobility of EU citizens—received comparatively little attention apart from immigration and asylum specialists. This contribution presents the constitutional framework for ‘migration law’ towards third‐country nationals and shows in how far they depart from the paradigm of intra‐European mobility. It will be argued that differences can be rationalised by divergent objectives and do, nonetheless, not present a move towards ‘fortress Europe’. EU migration law maintains the distinction between citizens and foreigners at the same time as it protects migrants, including refugees. By accommodating migrants' rights and self‐government, EU migration law can be construed as an endeavour to replace traditional notions of alienage with constitutional rules with a cosmopolitan outlook.     

Granting the Right to Vote for the European Parliament to Resident Third‐Country Nationals: Civic Citizenship Revisited

The EU grants rights to third‐country nationals (TCNs) and strives to approximate their rights to those of Union citizens. Up to now, the approximation has extended to social and economic matters. This article investigates whether political rights, notably voting rights for the European Parliament (EP), should also be approximated. To this end, the analysis applies Dahl's democratic principles of ‘coercion’ and ‘all affected interests’ as well as Bauböck's principle of ‘stakeholding’ to the position of TCNs in the EU. Against that background, it explores the relevance of arguments for and against granting TCNs the right to vote in European elections and submits that voting rights should be granted to long‐term resident TCNs. The author then proposes including TCN voting rights in the legal framework for EP elections and concludes by suggesting the use of the concept of civic citizenship to express political approximation of TCNs to EU citizens.     

The Paradox of American Critical Legalism

Duncan Kennedy's essay is a reprint from his recently published book. We hope to draw attention to Kennedy's work among students of European integration since we believe his analysis to be relevant both to the specific debate on the impact of European integration upon private law and to comparative legal study in general. European legal scholarship has only recently begun to examine the problems of private legal integration. The late appearance of private law in the integration arena is due to a primarily instrumental understanding and strategic use of law in the European market-building project: only once legal ‘barriers to trade’ were eliminated and national regulatory law replaced by Europeanised norms, did the degree to which the core institutions of ’private‘ law had been (indirectly) affected by the integrationist logic become apparent. Comparative legal research, however, has benefited from this awakening of interest. European Commission projects have widened the scope of and intensified comparative studies in Europe. Equally, experience gained from the ‘Integration Through (Public) Law’ project has led to a new private legal debate on the impact of national traditions, the concept of legal cultures and the social functions of private law. Accordingly, whilst Duncan Kennedy's deliberations on the history of American legal thought and the differences between American and European legal cultures are generally to be commended for their sensitive treatment of the specificities of the civil law system and the common law heritage, they are equally of particular topical concern since in addition to highlighting America's ‘utter faith and utter distrust in law,’ they also investigate the fundamentally different approaches adopted towards ‘the project law’ within each of the member states of the EU. If European private lawyers are to come to terms with the problems of integration and convergence, they must first tackle these deep-seated divergences between their own national legal cultures.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

European Citizenship and the Right to Reside: ‘No One on the Outside has a Right to be Inside?’

This paper deals with the question: Who ought not to be excluded from the enjoyment of European citizenship rights? Recently, the Court of Justice has ruled that, in exceptional situations, the ‘genuine enjoyment of the substance of rights attaching to European citizenship’ can be invoked in order to also extend legal protection to specific categories of third country nationals. I will argue that the ‘genuine enjoyment’ formula is not only setting an innovative jurisdictional test concerning European citizenship rights, but that it is also highlighting how the traditional account of citizenship (from status to rights) can be conceptually reversed. This happens in threshold cases, where the tenability of the schema of distribution of rights, agreed within a political community, depends on the possibility to readjust the boundaries of political membership.     

A 'European' Conception of Legal Consciousness: Rediscovering Eugen Ehrlich

This paper discusses the present ‘legal consciousness’ literature and seeks to identify two different conceptions of legal consciousness. Most of this literature originated in the United States, but there has also been a growing interest in issues of legal consciousness in Europe. The use of the term ‘legal consciousness ’ in these European discussions is, however, remarkably different from its use in the United States literature. It is argued that the most commonly used ‘American ’ conception of legal consciousness reflects important ideas of Roscoe Pound and asks: how do people experience (official) law? By contrast, a European conception of legal consciousness, which was first introduced by the Austrian legal theorist Eugen Ehrlich, focuses on: what do people experience as ‘law ’? After both perspectives are applied in a case‐study of a run‐down neighbourhood in the Netherlands, it is concluded that future studies of legal consciousness may benefit from an integration of the two conceptions.     

The Origins of the ‘Nonmarket Economy’: Ideas,Pluralism & Power in EC Anti‐dumping Law about China

‘Market’ and ‘market economy’ exercise a powerful, even magnetic grip on our collective imagination. But what do we mean by ‘market economy’? Does it make sense to speak of a ‘nonmarket economy’, and if so, what does it mean? How are the ideas of ‘market economy’ and ‘nonmarket economy’ related? Focusing on EC anti‐dumping law, this article seeks to answer these questions. It argues that the legal concept of ‘nonmarket economy’ in EC anti‐dumping law has been socially constructed, by means of relations among a plurality of institutional and normative sites, as part of a changing configuration of legal ideas in specific historical circumstances, and in contexts of political, economic, social, and symbolic power. This argument is articulated in three parts. First, the concept of ‘nonmarket economy’ in EC anti‐dumping law, though drawing on earlier elements, had its main roots in the early Cold War. Second, starting in the 1960s, the GATT multilateral negotiating rounds began to define more specific international rules of the game, but a variety of more localised processes played essential roles as forces of change. Of special importance were, first, the tension between legislative rules and administrative discretion in the United States, and, second, the Europeanisation of foreign trade law in the course of European integration. Third, the EC law concept of ‘nonmarket economy’ was born in the late 1970s. The main reasons were changes in the international anti‐dumping law repertoire, specific ideas in Europe about comparative economic systems, and the perceived emergence of new economic threats, including exports from China.     

European Citizenship and EU Immigration: A Demoi‐cratic Bridge between the Third Country Nationals' Right to Belong and the Member States' Power to Exclude

European citizenship entails, for EU nationals, a right to belong across borders. This article questions the implications of this latter right for the status of third country nationals in the EU. It contributes to address a gap between the literature on European citizenship and the literature on the admission and civic integration of third country nationals. The article begins by tracing a disconnect in the rules and narratives on admission and naturalisation of third country nationals in the EU. This is a disconnect between logics of individual rights protection, which European citizenship infiltrates, and logics of state sovereignty and governmental discretion, which otherwise dominate relevant rules and narratives. The article relies on the political science literature on mutual recognition and demoicracy to reinterpret European citizenship's norm of belonging across borders so as to reconcile the disconnect. Ultimately, the theoretical bridge that the article draws between citizenship narratives and immigration narratives offers a novel perspective on the tension between liberal values and integration discourses in Europe. It also sets out a possible frame to begin rethinking rules of engagement and cooperation in the context of the EU common immigration policy.     

Free Movement of Third Country Nationals in the European Union? Main Features,Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom,Security and Justice

The adoption of European Community (EC) Directives in the field of legal migration has been accompanied by the introduction of intra-community mobility rights. This new kind of right is characterised by specific features with regard to free movement rights enjoyed by European Union (EU) citizens. Besides, existing mobility rights for third country nationals (TCNs) raise some important problems with regard to their legal configuration and to their relationship with other fields of Community law. After having addressed these issues, it will be argued that the current regulation of mobility rights for TCNs does not fulfil the requirements of systematic coherence, and does no meet the need to grant a level of free movement that encompasses the evolution of harmonisation in the field of the Area of Freedom, Security and Justice.     

Between Procedural Impermeability and Constitutional Openness: The Italian Constitutional Court and Preliminary References to the European Court of Justice

On 15 April 2008, the Italian Constitutional Court (ICC) raised for the first time a preliminary question to the European Court of Justice (ECJ). This decision (see judgment No 102/2008 and order No 103/2008) represented a turning point in the ICC's case‐law, and calls for a careful assessment of the motives backing such revirement as well as of the legal reasoning that the Italian judges used to wrap it up without repudiating their previous case‐law. In addition to this preliminary analysis, the aim of this essay is to explore two themes: i) the developments of the ICC's case‐law as regards the role of Community Law and the ECJ, and ii) the appraisal of the interplay between the ICC and the ECJ in the light of the notion of ‘interpretive competition’.     

There Must Be Some Way Out of Here: The Crisis,Labour Rights and Member States in the Eye of the Storm

This article considers the impact of the economic, social and political crisis on the labour law regimes of two of the Member States of the EU most affected; Greece and Ireland. Both countries have been the recipients of ‘bail‐out’ deals, negotiated and monitored by what has become known as the ‘Troika’ of the European Commission, the European Central Bank and the International Monetary Fund. The article considers the extent to which both countries have been required to make amendments to their labour law regimes as a condition of their bail‐outs. It argues that the changes demanded reflect the basic norm now governing the EU legal order, namely that of ‘competition’; the logic of market integration based on the primacy of economic competition. The article sets the reforms in Greece and Ireland within the broader context of the ‘social deficit’ problem of the EU construction.     

The National Judiciary—Sword of European Court of Justice Rulings: The Example of the Kohll/Decker Jurisprudence

The role of the national judiciary in enforcing EC law, and particularly European Court of Justice (ECJ) rulings, has been largely neglected by empirical legal and political science research. Existing research has categorised the role of the national judiciary as either shielding national legislation from the ECJ or as serving as a ‘sword’ to foster integration and to force change on reluctant governments. This article sides with the second assumption and attempts to empirically assess it using the example of the patient mobility jurisprudence by the ECJ, the so‐called Kohll/Decker jurisprudence. The three case studies on France, the UK and Germany show that national courts played an important role in overcoming the resistance against this jurisprudence: via a multiplication of national court cases that contradicted domestic legislation they forced the legislator to end judicial uncertainty.     

Legal ‘Elasticity’ and ‘Sidestepping’ in European Crisis Management of Financial Markets

This paper explores the roles played by law in crisis management of financial markets and some possible consequences. Three questions are raised ‐‐about the ‘elastic’ use of law, about ‘sidestepping’ existing legal order by invention of new structures and about redistributive consequences. These questions are appraised empirically in relation to three areas of financial market law: public support given to banking from 2008 onwards; English case law concerning derivatives contracts when confronted with Lehman‐style insolvencies; and the European Stability Mechanism, which during summer 2015 was being primed in relation to Greece. On the first two case studies, law, having been mightily stretched, did not break. Likewise, legal sidestepping, as epitomised by the European Stability Mechanism, may result in a less coherent legal structure; however such incoherence may be not be fatal to the ensemble. On all three fronts, redistributive questions remain controversial, but controversy in itself does not undermine legal structures. A particular form of theory, the Legal Theory of Finance, is discussed in light of the case studies. Such theory may have an unfulfilled longing to discern law‐like regularities (ironically chasing economics).     

Civic Citizenship Reintroduced? The Long‐Term Residence Directive as a Post‐National Form of Membership

This paper presents how the Long‐Term Residence Directive has created a status that can be considered as a subsidiary form of EU citizenship. This key revolution has been operated by EU law since this status escapes direct control by Member States that are obliged to grant EU long‐term residence and the rights associated with it to third‐country nationals (TCNs) fulfilling the conditions in the Directive. This represents a fundamental development and may be distinguished from the acquisition by TCNs of national/EU citizenship, which constitutes a prerogative of State sovereignty. Indeed, the recent cases by the Court of Justice analysed below confirm this truly post‐national form of membership and have profound implications for the relationship between borders, territory and population in the EU.     

The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union

Abstract The concept of citizenship is analysed on three seemingly contradictory levels: its integration by the recent case law of the European Court of Justice into the existing free movement acquis, its restriction in the accession treaties with new Member States concerning free movement of workers, and its redefinition by new Member States themselves. The result is a somewhat blurred picture: While the European Court of Justices uses citizenship to fill gaps left by primary and secondary law mostly with regard to non‐discrimination, the accession treaties have allowed a ‘re‐nationalisation’ of free movement, against the promises of equality inherent in the citizenship concept, which also includes nationals from new Member countries. The concept of citizenship itself in new Member countries, as the examples of Latvia and Estonia on the one hand, and Hungary on the other demonstrate, is very much related to the (somewhat sad) lessons of the past and therefore highly politicised; it has not been shaped with regard to free movement in the EU. The author suggests a gradual ‘communitarisation’ of citizenship itself even though the EU seems to miss competence in this area, for example, by paying greater attention to residence as basis for Community rights.     

The Proposed ‘Common European Sales Law’: Legal Framework and the Agreement of the Parties

The European Commission's Proposal for a Regulation on a Common European Sales Law (‘CESL’) seeks to create a European scheme of contract law available for parties to choose to govern cross‐border contracts for the sale of goods, supply of ‘digital content,’ and for the supply of related services. This article explains the background to the Proposal, sketches out the purposes and scope of the CESL, and considers and criticises its legal framework (and in particular its relationship with private international law) and the key requirement of the parties’ agreement. In the author's view, the CESL scheme remains an unconvincing basis for the achievement of its economic purposes and, as regards consumer contracts, puts too much reliance on the agreement of the consumer as a justification for the loss of their existing protection under EU private international law rules.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

Internal Market Rationality,Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU's functional institutional design; second, the processes of post‐national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.     

The Child in European Human Rights Law

This article examines the category of ‘the child’ in European human rights law, based on an analysis of the child‐related jurisprudence of the European Court of Human Rights. It argues that a full account of legal selfhood is constructed through the notion of ‘the child’ in this jurisprudence. The two notions – of ‘the child’ and ‘the self’ – are, from the outset, mutually dependent. The conceptualisation of ‘the child’ in human rights law is underpinned by an account of the self as originating in another and childhood is cast as enabling self‐understanding by making possible the formation of a narrative about the self. The vision of ‘the self’ that emerges is one of ‘the narrative self’, and I assess the implications of this both for the idea of childhood in which this narrative originates and for the vision of the human condition that is expressed in European human rights law more broadly.