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Table of Contents: I. Introduction. – II. The Court’s ability to influence policies. – III. Research design – IV. The analogous application of the Directive – IV.1. Periods of residence completed under Directive 68/360 – IV.2. Free movers returning to their Member State of origin – IV.3. Free movers naturalised in the host Member State – V. National responses to the analogous application of the Directive – V.1. Periods of residence completed under Directive 68/360 – V.2. Free movers returning to their Member State of origin – V.3. Free movers naturalised in the host Member State – V.4. Same-sex spouses – VI. Judicial Europeanisation through deconstitutionalisation – VII. Concluding remarks.
Abstract: The Court of Justice of the European Union (the Court) is often hailed as a pioneer in integration through law. Existing scholarship on the Court’s judicial power overwhelmingly focuses on constitutionalisation and the horizontal policy dimension. As a result, the judicial techniques behind the Court’s policy-making and the ensuing implications for domestic policies remain largely understudied. The recent deconstitutionalisation of EU law begs the question as to whether the Court can steer national policies through its case-law without constitutionalising policy outcomes. The Article responds to this gap, by empirically investigating the legal techniques underpinning the Court’s policy-making in a deconstitutionalised manner and the ensuing implications for Member States’ policies. The analysis examines the legal reasoning in all cases where the Court applies the provisions of Directive 2004/38 by analogy, as an example of the deconstitutionalisation process, and traces the responses of all Member States to the Court’s jurisprudence. The findings illustrate that the creation of rights through the analogous application of Directive 2004/38 enables the Court to diplomatically balance competing interests and is successful in generating judicial Europeanisation in the domain of migration.
Keywords: Court of Justice of the European Union – European citizenship – judicial Europeanisation – deconstitutionalisation – integration through law – migration policy.
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European Papers, Vol. 9, 2024, No 2, pp. 529-555
ISSN 2499-8249 - doi: 10.15166/2499-8249/770
* PhD Researcher, European University Institute, eftychia.constantinou@eui.eu.
