Punishment and Rights in European Union Citizenship: Persons or Criminals?

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.     

The Right to Have What Rights? EU Citizenship in Need of Clarification

This paper provides a brief critical overview of the recent EU citizenship case‐law of the Court of Justice including Rottmann, Ruiz Zambrano, McCarthy and Dereci. While these cases open a number of new avenues of fundamental importance for the development of EU law, they also undermine legal certainty and send contradictory signals as to the essence of the EU citizenship status and the role it ought to play in the system of EU law. Most importantly, the Court's reluctance to specify what is meant by the ‘essence of rights’ of EU citizenship potentially has disastrous consequences following its own determination that such rights play a crucial role in moving particular factual constellations within the material scope of EU law. The substance and meaning of such rights is however left in suspense to harmful effects. An urgent clarification is needed.     

EU Citizenship without Duties

Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims. (1) There are no empirically observable duties of EU citizenship; (2) such duties would lack any legal‐theoretical foundation, if the contrary were true; (3) legal‐theoretical foundations of the duties of citizenship are lacking also at the Member State level; (4) EU law plays an important role in undermining the ability of the Member States where residual duties remain to enforce them; (5) this development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de‐dutification of citizenship around the democratic world. If these conclusions are correct, it is time to stop categorising EU citizenship duties among the desiderata of EU law.     

Using the Citizen to Bring the Refugee In: Gerardo Ruiz Zambrano v Office national de l'emploi (ONEM)

The decision of the CJEU in Zambrano was seen as another example of an over‐active judiciary in Luxembourg. This comment suggests, on the contrary, that the case has too little reasoning to open any ‘floodgates’ but that in setting out a new logic for EU citizenship, the Opinion offers an approach which limits the global approach to free movement case law and uses citizenship status to include rather than exclude the refugee.     

The citizen‐makers: Ethical dilemmas in immigrant integration

The topic of citizen‐making—turning migrants into citizens—is one of the most politically contested policy areas in Europe. Access to European citizenship is governed by national law with almost no EU regulation. The Article brings to the fore normative concerns associated with citizen‐making policies in Europe (Section 2). It examines ethical dilemmas involved in the process of creating new citizens (Section 3) and promotes the adoption of a European legal framework on access to citizenship (Section 4). The overall claim is that every newcomer will be required to demonstrate, as a prerequisite for citizenship, attachments to the constitution of the specific Member State, yet the test will be functional, flexible and non‐exclusive. As the topic of EU citizenship law is currently at the centre of the European agenda, this article has both theoretical significance and policy implications.     

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.     

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.     

Strategic Anticipation of En Banc Review in the U.S. Courts of Appeals

The quest for empirical evidence of strategic judicial behavior has produced mixed results. This study finds such evidence in the decisions made while crafting an opinion. Central to any opinion is which precedents are cited and whether their scope is limited (negative treatment) or expanded (positive treatment). I look for evidence of strategic anticipation of en banc review in these decisions using an original dataset of published search and seizure cases from the U.S. Courts of Appeals from 1953 to 2010. A panel is less likely to negatively treat a precedent with which the full circuit is more closely aligned. Circuit preferences also have an effect on citation itself, but only when the panel is at least moderately aligned with a precedent. Moreover, the panel's own ideology is only a significant predictor of citation when the full circuit is favorably disposed toward a particular precedent.     

The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domestic judicial superiors. We argue that the institutional dynamics identified by this ‘judicial empowerment thesis’ proved self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial hierarchies and to influence the development EU law in ways that were also encouraged by the ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ with comparative case study and interview evidence. We conclude that while these evolving judicial politics signal the institutional maturation of the EU legal order, they also risk weakening the decentralized enforcement of European law.     

Fundamental Rights and Citizenship of the Union at a Crossroads: A Promising Alliance or a Dangerous Liaison?

The reinforcement of the protection of fundamental rights at the European level and the emergence of the status of Union citizenship are two closely connected phenomena. European citizenship has been and continues to be one of the central arguments in favour of the extension of the scope of EU fundamental rights. This argument arises out of a sentiment that vindicates equality at the core of the citizenship of the Union as a fundamental status. Against this background, this paper examines the different possibilities of interconnection between the traditional doctrine of EU fundamental rights and the jurisprudential construction of the citizenship of the Union. Particularly, it will be discussed whether fundamental rights should be placed at the core of the formula that protects the ‘genuine enjoyment of the substance’ of the rights conferred by EU citizenship, inaugurated by Ruiz Zambrano, already latent in Rottmann and substantially refined in an ever‐growing case‐law (McCarthy, Dereci, O. and S., Ymaraga and Alokpa). It will be argued that this formula carries the very valuable potential to reinforce citizenship of the Union as an independent source of rights able to overcome problems such as reverse discrimination. For these purposes, this formula could be considered to encompass not only the absolute deprivation of the ‘genuine enjoyment of the substance of citizenship rights’, but also the existence of serious obstacles thereto.     

EU citizenship and (fundamental) rights: Empirical,normative, and conceptual problems

There is a close connection between EU citizenship and rights, both in the law and literature. This article claims that EU lawyers' understanding of EU citizenship and rights suffers from empirical, normative, and conceptual shortcomings. I will point out that there has been insufficient awareness for the boundedness of EU citizenship, the political structure of the EU and the constraints this (realistically) imposes on the ‘meaningfulness’ of EU citizenship. EU citizenship must not be understood as requiring an elaborate set of equal rights for all Union citizens throuzghout the EU, but valued for its ability to allow its status holders to enjoy (almost) full membership in the Member States of which they do not possess nationality.     

Retrieving the ‘subject’ of European integration

In this article, a critical reinterpretation of citizens as subjects of European integration moves the focus of EU law from EU citizens' subjection to their subjectification. This analysis draws on post‐structural social theory in arguing that the law is instrumental to securing the material conditions for transnational political subjectification because it regulates both EU citizens' access to transnational social relations and the perception of difference between them. However, the law also reinforces constraints on the process of transnational subjectification. Systematic obstacles, which must be taken into account, are not limited to economic status, but include other variables like gender or age. It will be argued on this basis that EU law needs to develop a more coherent politics of subjectivity. Towards this goal, the law must carefully attend to what is (and is not) depoliticising in EU citizenship rights.     

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.     

Of Values and Legitimacy – Discourse Analytical Insights on the Copyright Case Law of the Court of Justice of the European Union

The Court of Justice of the European Union (CJEU) increasingly faces societal value‐conflicts in EU law disputes. For example, in EU copyright law, in the digital age, diverse fundamental values, as well as cultural and societal developments, are at stake. This article discusses the role of the CJEU in the European value discourse, using copyright law as a case study. The methodological approach used, critical discourse analysis, is seldom applied in jurisprudential studies, but is well suited for teasing out value‐related aspects of case law. Exploratory research of seminal copyright cases suggests that the CJEU's discourse of the various values seems unnecessarily one‐sided and shallow. A lack of discursiveness in the jurisprudence would diminish the legitimacy of the Court's decisions, and would not offer adequate guidance to national courts or private decision‐makers, to whom the Court at the same time may be leaving more of the task of value reconciliation.     

判例:一种法律解释的方法--兼论我国国际私法判例制度的构建

判例法和成文法分别是普通法系和大陆法系的主要法律渊源.然而,作为一种创制法律、解释法律的技术方法而言,判例法与成文法并不是相互排斥、相互对立的.来自法官个案司法经验总结的判例法,由于其独特的直观性、灵活性,可以弥补大陆法系成文法适用与解释之不足.成文法亦是我国的传统,借鉴和移植判例制度,有助于克服我国司法解释中存在的种种缺陷,增强法律适用的确定性、灵活性和公正性.尤其在国际私法领域,立法的严重滞后,使得判例制度的引进和重构成为完善我国国际私法的一个重要路径.     

‘Caminante,no hay camino,se hace camino al andar’1: EU Citizenship,Direct Democracy and Treaty Ratification

Abstract: This article argues that obligatory, simultaneous, and simple Treaty ratification by referenda is the next step in the consolidation of the political core of European citizenship. In the first part, general remarks about the special nature of EU citizenship highlight the relevance of referenda on EU Treaties for EU citizenship. In the second part, the normative and empirical case in favour of direct democracy is put forward. It is followed by the assessment of direct democracy in European integration as we have known it so far. The practice is irreversible and gaining in momentum. But it is in need of substantial reform due to procedural dysfunctions and discriminatory consequences for the citizens. Section V relates this result to a legal analysis of EU citizenship. The suppression of the discriminatory consequences of the Treaty ratification procedure is necessary from a legal point of view, but it cannot be expected from the ‘judicial incrementalism’ that has characterised the development of EU citizenship regarding free movement and residence. In section VI , the conclusions of the previous sections are drawn into the final proposal of obligatory, simultaneous and simple Treaty reform by referenda in all Member States. At the end, five counter‐arguments to the proposal are discussed.     

Levels of Generality in the Legal Reasoning of the European Court of Justice

The level of generality or of abstraction used to describe a precedent, a right, or the legislative intent behind a statutory provision or constituent purpose behind a constitutional provision can have a decisive impact on the outcome of a case. Characterising it in narrow terms has the effect of reducing the scope of decision of a judgment; conversely, a broader characterisation provides more leeway for a judge in a case to encompass its facts within the precedent, right or purpose in issue. The issue raised by the level of generality problem is the extent to which courts have a discretion or freedom of manoeuvre as to the level of generality they decide upon, and thus whether generality and abstraction are manipulable in the hands of judges and are not really predetermined by the legal sources in question or an established judicial method of interpretation. Uncontrolled judicial discretion of this kind is problematic from the point of view of the rule of law and democracy, especially when adjudication concerns constitutional provisions, the equivalent in the EU being interpretation by the European Court of Justice (ECJ) of the EU Treaties; reversal of ECJ interpretation through Treaty amendment is particularly difficult to achieve because it requires unanimous coordination by the Member States. This article examines two alternative ways of determining the correct or appropriate level of generality issue in ECJ interpetation, coherence or the legal traditions of the Member States, and argues in favour of the latter as a less subjective method. Application of the two alternative approaches is tested in two areas of EU law, state liability and criminal law.     

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.     

Horizontal Liability for Damages in EU Law—the Changing Relationship of EU and National Law

The article focuses on damages liability between private parties—referred to as horizontal liability—that is based on EU law. Generally, this kind of liability may be based on EU secondary legislation or be derived from substantive EU law and legal principles. The article seeks to analyse the latter: liability in an area of EU law where so‐called procedural autonomy still, at least apparently, prevails. Special attention is paid to the lively interface between EU law and national remedies and to the increasing EU law requirements for the enforcement of EU law in national courts. Recent case‐law on private liability for damages caused by competition infringements is discussed as part of a more general question concerning the ways in which the relationship of EU law and national enforcement frameworks is developing.     

The Impact of Training and Language Competence on Judicial Application of EU Law in Hungary

The aim of this research is to identify the role that training in EU law and in a foreign language play in the use of EU law by Hungarian judges in domestic proceedings. Judges in the new Member States face the problems of no or inadequate official EU translations of relevant EU law or case‐law. The need to compare the meaning of other language versions therefore comes into play in order that the judges comply with the requirements of Union loyalty in the Treaty on European Union: Hungarian judges are shown to exhibit certain creative responses to these challenges. The approach to the research is based on an examination of the institutional framework for judicial training, a selection of pertinent case‐law of the Hungarian courts as well as interviews with a number of judges involved in the application of EU law in their courts.