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.     

Sincere Cooperation,Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland's Future in the European Union?

The position of an independent Scotland within the European Union (EU) has recently been a subject of considerable debate. The European Commission has argued that any newly independent state formed from the territory of an existing Member State would require an Accession Treaty. This article critiques that official position and distinguishes between a set of claims that could be made on behalf of an independent Scottish state, and a set of claims that could be made on behalf of the citizens of an independent Scottish state vis‐à‐vis the EU. It argues that the general principles of the EU Treaties ought to govern how Scotland is treated, and that a new Accession Treaty is not necessary. Furthermore, notwithstanding the jurisprudence of the European Court of Justice (ECJ) in the area of EU citizenship, we conclude that EU citizenship itself is not sufficient to guarantee or generate membership of the EU.     

Union Citizenship—Metaphor or Source of Rights?

After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting 'quasi-citizenship' rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing 'implied duties' based on a doctrine of ' abus de droit ' upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law.     

The European Union Post‐Brexit: Static or Dynamic Adaptation?

The choice facing the leaders of the European Union, after Brexit, is between a static adaptation, leaving the current approach to integration essentially unchanged, and a dynamic adaptation, which recognises the need for radical changes. Dynamic adaptation requires institutional leadership—something apparently incompatible with the basic principle of the equality of all the Member States. The clearest indication of a deficit of leadership is the failure to define the real purpose of the collective activity. This failure is at the root of Brexit, as may be seen from the explicit rejection of the indefinite goal of ‘ever closer union’ by the British prime minister in November 2015. An alternative approach to European integration finds a good theoretical foundation in Buchanan's theory of clubs. The essential principle of a functional organisation at supranational level is that activities would be selected specifically and organised separately. A strictly functional approach to integration could revive an interest in political union in the form of a confederation. As Tocqueville had clearly understood long ago, the weakness of confederations increases in direct proportion to the extent of their nominal power. What is most important today is to distinguish between the general idea of European integration and one particular implementation of that idea, such as the European Union.     

The European Union in global environmental governance: Leadership in the making?

For well over a decade, the European Union (EU) has proclaimed its leadership role in global environmental governance (GEG). In this article, we examine both the nature of its leadership and the underlying conditions for ‘actorness’ upon which leadership must depend. The EU’s record in the global conferences as well as its influence on the reform of the Commission on Sustainable Development (CSD) and the United Nations Environment Programme (UNEP) are also investigated. We argue that the EU has frequently sought to shape international environmental negotiations and promote sustainable development as an organising principle of global governance. Despite its inadequate status at the UN and internal problems, it has had a significant effect on the global agenda. However, due to persistent diplomatic opposition from other coalitions, its real, directly visible influence has been more modest. For genuine directional leadership, which goes beyond the defence of self-interest, the Union will have to make internal policy coherence a greater priority. Moreover, apart from relying solely on its weighty presence in the international system or its potential capabilities, the EU needs to achieve a high level of credibility in order to enhance its powers of persuasion.

Going Unnoticed? Diagnosing the Right to Asylum in the Charter of Fundamental Rights of the European Union

Article 18 of the Charter of Fundamental Rights of the European Union enshrines the right to asylum. Nonetheless, despite its ‘constitutionalisation’ within primary law, asylum remains a far too amorphous right, whose axiological potential has gone virtually unnoticed in the ongoing migratory crisis. The paper will argue that this is partly due to the fact that the Court of Justice on a few occasions has declined to clarify the scope of Article 18. The provision at issue therefore remains a pathological element that requires an adequate diagnosis on which accurate prognoses can be based. In an attempt to diagnose the right to asylum enshrined in Article 18 of the Charter of Fundamental Rights of the EU, this paper will compare different hermeneutical approaches and reflect on the contextualisation of the mentioned provision through the lens of domestic and EU case law and in the light of the recent EU–Turkey Statement. The article will ultimately propose to interpret the EU asylum legislation as instrumental to the effective exercise of the right to asylum.     

National parliaments and the European Union: part of the problem or part of the solution to the democratic deficit in the European constitutional settlement?

European integration is as much an opportunity as a threat to national parliaments. The view that national parliaments have been the main losers in the process is not substantiated by empirical evidence. National parliaments have adapted their structures and procedures to keep pace with the increasing scope of integration. This process has included strengthening the constitutional powers of parliaments in some of the member states. The recognition in the Nice and Laeken declarations that national parliaments have an important role in enhancing the democratic legitimacy of the Union and the key provisions of the draft protocols on the role of national parliaments and subsidiarity adopted by the Convention on the Future of Europe will ensure that national parliaments have the opportunity and the means, if they so choose, to be closely involved in Union affairs. Constitutional change at the Union level is likely to trigger normative and procedural change in the member states.     

Dignity or discrimination: what paves the road towards equal recognition of same-sex couples in the European Union?

Abstract

The article analyses possibilities for the Court of Justice of the EU to go beyond its current narrow approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering a comparative treatment of dignity-based arguments. It critically reviews the CJEU’s current approach exclusively focusing on direct discrimination and the comparator paradigm. By doing so, the Court has tolerated a situation of de facto discrimination and limited advancement of same-sex rights. The question is then whether the situation could be overcome if the CJEU would follow other courts and develop reasoning based on dignity to underpin the EU non-discrimination analysis with substantive meaning. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law fosters equality by imposing procedural standards and challenging measures that effect groups differently. The concepts should thus not be conflated. Instead, a consistent application of the concepts of direct and indirect discrimination seems more promising.     

National autonomy and democratic standardization: Should popular votes on European integration be regulated by the European Union?

Given the increasing use of direct democratic devices on questions of European integration, this paper explores whether or not Member States may have good reason to agree on common regulations for popular votes of this nature. Conceiving of the European Union as a political system designed to serve the interests of states and citizens, it is argued that where direct votes have the potential to undermine the territorial, functional, normative or existential integrity of the EU, then states may have good reason to sacrifice a degree of national autonomy to adopt common regulations for certain uses of direct democracy. This leads to a case for democratic standardization across Member States when it comes to withdrawal, accession, Treaty ratification and opt‐in decisions.     

Child-related leave and women’s labour market outcomes: towards a new paradigm in the European Union?

The current European Union (EU) legislative framework on child-related leave is facilitating an imbalance in the take-up of leave by women over men. There is a consolidated EU right to maternity leave for mothers but there is no parallel EU right to paternity leave for fathers. The EU right to parental leave is for both working mothers and fathers, but its design does not encourage an equal take-up by women and men. The aim of this article is to gain insight into the effects of child-related leave on women’s labour market outcomes. On the one hand, it reviews and analyses economic literature which points to the adverse consequences of leave on women’s earnings, and even on women’s labour market participation when the absences from work are very prolonged. On the other hand, it underlines the new direction followed by the European Commission towards greater equality between men and women at home and at work.     

No child left behind in the European Union?: the position of Romani children

This paper analyses how different EU documents (communications, recommendations, reports and surveys, etc.) focusing on Roma frame the position of Romani children. Many studies have shown that because of their intersectional positioning, Romani children often face multiple discrimination and triple exclusion: on the basis of their ethnicity, their age and their socio-economic status. The paper comments on selected findings on Roma in the Second European Union Minorities and Discrimination Survey published by the Fundamental Rights Agency in late 2016. One of the main findings of this Survey was that 80% of Roma live below the country-specific risk of poverty line in all EU Member States in which the Survey has been conducted. By specifically examining the implication this finding has for the position of Romani children, I argue that their position is, in fact, produced and reproduced with systemic, but also everyday racism. When it comes to Roma, but specifically Romani children, not even the European Union (EU), based on principles of fundamental human rights, is immune to such phenomena.     

Structural changes in Central and Eastern European economies: breaking news or breaking the ice?

This paper extends the sparse existing literature on structural breaks in emerging markets in Central and Eastern Europe by analyzing structural breaks in the intercept, trend and variance of monthly key macroeconomic variables, such as industrial production, inflation, monetary aggregates, nominal exchange rates and series related to the labor market. Using the Bayesian procedure developed by Wang and Zivot (2000, A Bayesian time series model of multiple structural changes in level, trend and variance. J Busi Econom 18:374–386), we provide strong evidence in favor of multiple structural breaks in the series under study. As most of the existing empirical literature on European emerging markets does not sufficiently deal with structural breaks, the instability found in this paper has important implications for macro-econometric modeling as well as the ensuing recommendations for economic policy.     

European Human Rights Law and the Normalisation of the ‘Closed Material Procedure’: Limit or Source?

Once a legal abnormality that was criticised on human rights grounds, the closed material procedure (CMP) has now become the main mechanism for dealing with allegedly sensitive security information in the UK. This article considers the role of European human rights law in that process. It argues that the CMP can be conceptualised as the product of human rights law, which has developed so as to legalise and normalise its use, and that this process is symptomatic of a deeper inter‐relationship between human rights law and the preservation of states' security interests, which renders the former inherently unsuitable for dealing with security phenomena.     

Britain and European Human Rights Law: An Author’s Apology

Netherlands International Law Review - In four books published between 1990 and 2008, I, along with my two co-authors, was very optimistic about the up-ward trajectory of European human rights law,...