Conference Agenda

The Court of Justice of the European Union (the Court) is often hailed as a pioneer in integration through law. Scholarly views, however, diverge on the extent to which the Court can leave its mark on domestic policymaking and the judicial techniques it employs to do so. Bourgeoning literature alluding to the deconstitutionalisation of EU law in recent years, begs the question as to whether the Court can steer national migration policies through its case-law without strictly constitutionalising policy outcomes. The paper empirically examines the extent to which changes to the scope and substance of citizenship rights brought about through the analogous application of Directive 2004/38 triggered modifications in domestic migration policies and influenced mobility patterns within the EU. It does so by examining all cases in which the Court applies the provisions of Directive 2004/38 by analogy to situations falling outside its scope. The analysis explores the mechanics of the Court’s policymaking and traces policy changes at domestic level. The findings illustrate that the creation of rights in a deconstitutionalised manner, through the analogous application of Directive 2004/38, enables the Court to balance competing considerations and successfully generates judicial Europeanisation. Crucially the findings reveal that this legal formula positively influences the ability of certain groups, particularly free-movers returning to their Member State of origin, free-movers naturalised in the host Member State, and same-sex spouses of Union citizens, to move and reside freely within the EU.

The EU citizenship institution is under pressure, caused by various phenomena in the past ten years or so. The migration crisis, Brexit, and, as this paper will zone in on, the marketisation of citizenship, pose both practical and normative problems for the EU citizenship institution, mobility within the Union, and the European project overall. Embodying a naturalisation policy where national citizenship (and EU citizenship) is granted in exchange for investments or other financial contributions to the Member State, the marketisation of EU citizenship seems to sit uneasily with the very concept of EU citizenship. I argue in the paper that if we take EU citizenship seriously as a social and supranational (and post-national) form of political membership, the marketisation of EU citizenship presses us to consider, and revisit, a radical solution, which has for long been advanced by scholars in the literature: Decoupling EU citizenship from nationality. In this context, I argue that we should introduce a socially responsible connecting factor in the shape of a genuine link, that is, a 5-year residence criterion, implemented as a direct link between the individual prospective EU citizen and the EU, to attest a social membership of the Union.

The abolition of internal borders within the Schengen area is among the most acclaimed landmarks of European integration. Free movement between EU Member States is a core right of EU Citizenship and EU migration law has equally awarded third-country nationals certain intra-EU mobility rights. However, “borderless Europe” does not result in the same reality for everyone. Racial profiling, i.e. being stopped by the police and other law enforcement authorities for checks of identity and residence documents solely or mainly based on racialized elements such as skin colour, ethnicity or religion, is a commonplace experience for black and ethnic minority EU citizens and third-country nationals. Such checks often happen in the name of controlling irregular migration, especially in the proximity of or at EU internal borders. Apart from amounting to prohibited race discrimination, racially profiled checks erect alternative “borders” that impede free movement irrespective of the presence of an actual physical border. This results in a “racialized” EU mobility regime in which only a privileged group of EU citizens and third-country nationals enjoys full free movement rights in practice.

Racial profiling within Member States is usually not considered a matter of EU law, as it would exclusively relate to the competences of domestic law enforcement authorities. This paper dismisses this assumption by showing that EU Schengen and asylum instruments not only condone but intensify national practices of racial profiling. Reintroduced controls of Member States at internal borders, policing in the proximity of these borders as proposed in the revision of the Schengen Borders Code and the “screening” of irregular migrants within the territory of Member States allowed by the new Screening Regulation are likely to give rise to widespread racial profiling at internal borders and within Member States’ territory. As these instruments, and EU law more broadly, lack indications on how to deal with cases of racial profiling, it is high time to establish a common EU framework that allows scrutinizing whether law enforcement practices amount to prohibited race discrimination and constitute illegitimate impediments to free movement. This would be in line with the EU’s commitments to fighting racism and upholding its borderless ideal. Drawing on existing EU legislation and CJEU jurisprudence, this paper demonstrates that assessing racial profiling at EU level is already possible and that a basis exists to further develop a framework that properly addresses and examines racial profiling arising from EU instruments.