European Law Journal, Vol. 22, Issue 3

DANIEL THYM, „‘Citizens’ and ‘Foreigners’ in EU Law. Migration Law and its Cosmopolitan Outlook” , European Law Journal, Vol. 22, Issue 3, pp. 296-316, 2016

 

Migration has become a controversial subject across Europe and beyond. At the same time, the EU has built up an impressive set of rules for third‐country nationals over the past two decades, which – unlike the mobility of EU citizens – received comparatively little attention apart from immigration and asylum specialists. This contribution presents the constitutional framework for ‘migration law’ towards third‐country nationals and shows in how far they depart from the paradigm of intra‐European mobility. It will be argued that differences can be rationalised by divergent objectives and do, nonetheless, not present a move towards ‘fortress Europe’. EU migration law maintains the distinction between citizens and foreigners at the same time as it protects migrants, including refugees. By accommodating migrants’ rights and self‐government, EU migration law can be construed as an endeavour to replace traditional notions of alienage with constitutional rules with a cosmopolitan outlook.

NEIL WALKER, „Constitutional Pluralism Revisited” , European Law Journal, Vol. 22, Issue 3, pp. 333-355, 2016

This essay revisits the theory of constitutional pluralism. This theory was first developed in the EU context as a way of understanding and defending the absence of a broadly agreed source of final authority in the relationship between national and supranational (EU) legal systems and their respective appellate courts in the context of the significant increase in supranational jurisdiction around the time of the Maastricht Treaty 25 years ago. The essay argues that the theory of constitutional pluralism remains relevant today, in particular offering better explanatory and justificatory accounts of the EU than any of the singularist (or monist), holist or federalist alternatives. Its continuing relevance, however, depends on a more explicit focus on the political underpinnings of the legal and judicial dimensions of constitutional pluralism than has typically been the case in the literature, and on more detailed consideration of the preconditions, forms and limits of constitutional initiative in the contemporary phase of unprecedented challenge to the legitimacy of the EU.

JULIO BAQUERO CRUZ, „Another Look at Constitutional Pluralism in the European Union”, European Law Journal, Vol. 22, Issue 3, pp. 356-374, 2016

 

Constitutional pluralism is a theory, or movement, or idea, for some perhaps even an ideal, about the relationship between the legal system of the European Union and those of its Member States. In this paper, Julio Baquero Cruz analyses its assumptions and implications in the light of historical experience and of the consequences it could have for the practice of law in Europe. To do so, constitutional pluralism is compared with the other main positions about that relationship: the national constitutional position and the position of Union law.

KELLY M. GREENHILL,”Open Arms Behind Barred Doors: Fear, Hypocrisy and Policy Schizophrenia in the European Migration Crisis” , European Law Journal, Vol. 22, Issue 3, pp. 317-332, 2016

 In 2015, over one million refugees and migrants arrived in Europe, laying bare the limitations of the EU’s common border control and burden‐sharing systems. This article examines consequences of the EU’s disjoint, schizophrenic and, at times, hypocritical responses to what has become known as the European migration crisis. It explains how unilateral, national‐level responses have made the EU as a whole particularly susceptible to a unique brand of coercive bargaining that relies on the threat (or actual generation) of mass population movements as a non‐military instrument of state‐level coercion. After outlining who employs this kind of foreign policy tool, to what ends, and under what circumstances, the article offers an illustration of this kind of coercion in action, by analyzing the March 2016 deal between the EU and Turkey. The article concludes with a discussion of broader consequences of the deal and implications both for the displaced and for the EU going forward.

MARCO GOLDONI,  „Politicising EU Lawmaking? The Spitzenkandidaten Experiment as a Cautionary Tale” , European Law Journal, Vol. 22, Issue 3, pp. 279-295, 2016

The Spitzenkandidaten experiment has elicited much interest in academic and political circles as a move towards further politicisation of important aspects of EU lawmaking. This article puts forward a sobering account of the normative and instrumental reasons that explain why these expectations were grounded on shaky premises and the experiment could not have delivered its promises. In particular, the article stresses (1) the failure in creating a channel for political opposition through the indirect election of the President of the Commission; (2) the adoption of a formal understanding of the institutions involved in the process, that is, a conception detached from their social basis and (3) the choice of the wrong institution for the purpose of politicisation. The article concludes with a modest proposal for the consolidation of the channels for political action already available at the level of the Member States.

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