European Law Journal Articles (Nov 2005) on SSRN: Free Movement, Citizenship & Hierarchy of Legal Acts

Articles from the November 2005 issue of the European Law Journal can now be found as full-text papers on SSRN. Here are a some of the titles and abstracts:


"The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union"
European Law Journal, Vol. 11, No. 6, pp. 675-698, November 2005
NORBERT REICH (University of Bremen, Faculty of Law) [full-text here]

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 , 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.

"What Does Free Movement Mean in Theory and Practice in an Enlarged EU?"
European Law Journal, Vol. 11, No. 6, pp. 699-721, November 2005
SERGIO CARRERA (Centre for European Policy Studies) [full-text here]

The purpose of this article is to review the main challenges to the principle of free movement of persons in theory and practice in an enlarged European Union. The right to move freely represents one of the fundamental freedoms of the internal market as well as an essential political element of the package of rights linked to the very status of EU citizenship. The scope ratione personae and the current state of the principle of free movement of persons is assessed by looking at the most recent case law of the Court of Justice and the recently adopted Directive on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. But what are the hidden and visible obstacles to free movement of persons in Europe? How can these barriers be overcome to make free movement and residence rights more inclusive? This article addresses these issues along with the following questions: Who are the beneficiaries of the free movement of persons in an enlarged Europe? What is the impact of the recent legal developments in the freedom of movement dimension, such as the European Court of Justice case law and the new Directive? And to what extent are pro-security policies such as the Schengen Information System II and an enhanced interoperability between European databases fully compatible with the freedom of movement paradigm?


"The Court of Justice and the Union Citizen"
European Law Journal, Vol. 11, No. 6, pp. 722-743, November 2005
JAMES D. MATHER (University of Leeds, School of Law) [full-text here]

Over a decade since the conception of the Union citizen, the aim of this article very simply is to measure his growth and maturity with a sustained analysis of the jurisprudence of the Court of Justice in this regard. After all, it was Advocate General Leger who stated that it was for the Court to ensure that its full scope was attained. The article focuses predominantly on three areas of study: Member State nationality law and citizenship, the effect and meaning of Article 18 EC, and the ever-evolving right to equal treatment for the Union citizen. It is fully updated in the light of recent case law, the Treaty establishing a Constitution for Europe, and the newly adopted Directive 2004/58 EC.

"Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures"
European Law Journal, Vol. 11, No. 6, pp. 744-765, November 2005
KOEN LENAERTS (Katholieke Universiteit Leuven (KUL) - Institute for European Law)
MARLIES DESOMER (Katholieke Universiteit Leuven (KUL) - Institute for European Law) [full-text here]

A remarkable feature of the Union's legal order is the absence of a genuine hierarchy of legal acts - a pre-established ranking of different types of legal acts in accordance with the democratic legitimacy of their respective authors and adoption procedures, which is used as a means to resolve conflicts among these different types of legal acts. There is however a clear suggestion of such hierarchy in the sequence in which the newly created legal instruments are listed in Article I-33(1) and in the organisation of the subsequent Articles I-34 to I-37 of the European Constitution. In this contribution, the (lost) logic behind the Union's current set of legal instruments is analysed, followed by an examination of the reform of the system of legal instruments carried out in the European Constitution. Lastly, an attempt is made to answer the question as to whether this reform amounts to the establishment of a genuine hierarchy of legal acts in the Union.