Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism

Shaw, Jo

doi:10.2139/ssrn.1585938

Cited by 14 publications

(3 citation statements)

References 26 publications

(9 reference statements)

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“…This evolution finds its source in the Court's commitment to protect the corpus of fundamental rights guaranteed in Europe -such as found in the EU legal order, through the general principles of law as well as the CFREU, but also in national constitutions and the European Convention of Human Rights -, 49 underlying motives guiding the Court's extensive reasoning in matters of citizenship. 50 If this is a legitimate aim, it is not without carrying its own consequences, as the extension of fundamental rights via the status of EU citizenship proportionately affects the integration process. In a nourished comparison with the making of the United States of America's Federation, Beaud 51 warns us of the «centralizing» effects of the use of fundamental rights in Federation building.…”

Section: 2 Purely Internal Situations or A Procedural Obstacle Bementioning

confidence: 99%

The emerging culture of EU citizenship as “citizenship of rights” and the legal nature of the EU polity

Silveira

Engström²

2016

unio

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Section: 2 Purely Internal Situations or A Procedural Obstacle Bementioning

confidence: 99%

The emerging culture of EU citizenship as “citizenship of rights” and the legal nature of the EU polity

Silveira

Engström²

2016

unio

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“…Yet, the wording introduced by the Treaty of Amsterdam in what was then Article 17(2) EC, to the effect that Union citizenship complements but does not replace national citizenship, which the Lisbon Treaty turned into "shall be additional to and not replace national citizenship," reflects the Member States' anxieties with regard to the expansive potential of the citizenship provisions. 91 There are clear parallels with the scope of EU fundamental rights law. In both areas, the principle of conferral finds expression in the logic of additionality, whereby Union citizenship does not replace national citizenship and EU fundamental rights do not replace national fundamental rights but only come into play where a situation falls within the scope of EU law.…”

mentioning

confidence: 99%

Fundamental Freedoms, Fundamental Rights, and the Scope of Free Movement Law

Cecco¹

2014

Ger. law j.

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The relation between internal market freedoms (the so-called“fundamental freedoms”) and fundamental rights is a recurring question in EU law. In recent years, after rulings such asSchmidberger, Omega, Viking, andLaval, attempts to provide a framework for approaching and resolving clashes between fundamental freedoms and fundamental rights have acquired a special urgency. Less attention, however, has been devoted to capturing the different nature of fundamental freedoms and fundamental rights, and to evaluating the implications of the choice whether or not to include fundamental freedoms in the same category as fundamental rights. The dominant focus in the literature is on what happens when free movement and fundamental rights pull in different directions. Yet, the question of whether fundamental freedoms should be regarded as fundamental rights also deserves close scrutiny. It is especially important to understand the implications of this classification since the EU Charter of Fundamental Rights appears to treat some, but not all, fundamental freedoms as fundamental rights. In particular, the Charter seems to regard the free movement of persons and services as fundamental rights, but not the free movement of goods or the free movement of capital. A similar approach is exhibited in the case law: While the Court recognizes the fundamental rights character of free movement of persons, it does not appear to extend that characterization to the entirety of free movement law. This article attempts to make sense of this dichotomy by relying on an account of fundamental rights that adopts a non-instrumental focus on the right-holder. It argues that certain free movement provisions, namely the free movement of goods and capital, cannot be characterized as fundamental rights because they are inherently instrumental—they are a means to the internal market end. By contrast, the other free movement provisions appear to match the account of fundamental rights adopted here. As this article aims to show, the classification of certain, or all, fundamental freedoms as fundamental rights is a question that affects the interpretation of thescopeof the free movement provisions. Moreover, as will be seen, the question is closely related to the debate on the convergence between the free movement provisions, and on the persistence of the “wholly internal rule,” the rule that requires a cross-border connection to trigger the application of free movement law.

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“…For some supranational citizenship is understood in an open-ended and ambitious way, as a harbinger of a "thicker" sense of membership. For others it is understood as derivative and secondary rather than an original and primary form of political identity, parasitic now and indefinitely upon the original member state citizenship without which one cannot be a supranational citizen (Shaw 2011).…”

mentioning

confidence: 99%

The Shifting Foundations of the European Union Constitution

Walker¹

2013

Social and Political Foundations of Constitutions

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This article traces the contested and unresolved history of EU constitutionalism. In particular it looks at the interaction of three strands; judge-centred legal constitutionalism, implicit documentary constitutionalism (itself divided into more or less evolutionary or foundational sub-strands) , and Big 'C' explicit documentary constitutionalism. It examines the various shifts not only in the actual pattern of relations between these strands, but also in how they are incorporated into dominant insider narratives. After the failure and fall of the (first ever) explicit Constitutional Treaty of 2004, the dominant insider constitutional narrative remained explicit, but no longer tied to a self-certified constitution of a foundational nature. Rather, it (re)stressed in express constitutional language the incremental and evolutionary quality of the EU's distinctive polity development and achievement. Given the present Euro crisis however, the evolutionary narrative, predicated upon continuing overlapping consensus, is under threat, and the return (and, perhaps, final rejection) of explicit foundational constitutionalism cannot be discounted. The story of the EU's constitutional origins, therefore, remains unfinished, and is closely tied up with the very fate of the EU polity.

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Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism

Cited by 14 publications

References 26 publications

The emerging culture of EU citizenship as “citizenship of rights” and the legal nature of the EU polity

The emerging culture of EU citizenship as “citizenship of rights” and the legal nature of the EU polity

Fundamental Freedoms, Fundamental Rights, and the Scope of Free Movement Law

The Shifting Foundations of the European Union Constitution

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