The European Court of Justice, Member State Autonomy and European Union Citizenship: Conjunctions and Disjunctions

Theodora Kostakopoulou 

University of Southampton - School of Law
July 25, 2012

B. de Witte and Hans-W. Micklitz (eds.) The European Court of Justice and The Autonomy of the Member States (Leiden: Intersentia, 2012), pp. 175-203
Southampton Law School Research Paper 
Abstract:      
Scholarship on the role of the European Court of Justice in shaping the polycentric European governance and the law and politics of ‘sovereign’ national authorities contains plenty of discords. Yet its role as a driving force of European integration is probably beyond dispute. Not only jurists but also political scientists have acknowledged its authoritative reasoning on issues of integration and principle, notwithstanding the existence of concerns about growing judicial power and the perennial disagreement over whether judicial processes are less legitimate than democratic ones. Certainly, if the meaning of the latter is confined to majoritarian processes, then the assumption of a quasi-legislative role by courts, that is, their ability to bypass political and legislative processes, appears to be problematic. But since democratic systems are built upon majoritarian electoral processes as well as reflective values and rights, which place constraints on governments’ powers, the judicial protection and advancement of these values and rights are normatively and empirically justified. Courts function as ‘fora of principle’and have been recognised as reliable agents for securing equitable settlements within and above the nation-state. This also applies with respect to European Union Citizenship. By comparing and contrasting two dimensions of the same institution; namely, the judicialised material scope and the non-judicialised personal scope of European Union citizenship, I argue that while the material scope of Union citizenship has been characterised by incremental, principled and transformative institutional change, its personal scope, that is, the question of who is entitled to be a member of the European citizenry, has by and large evaded a similar process of critical reflection and adaptation to changing conditions. In the subsequent discussion, I reflect on the consequences of governing with or without judges, the Rottmann judgement and the Member States’ relative autonomy and argue that the political consequences as far as the rights of citizens and residents, substantive commitments to non-discrimination and equal treatment and the vision of an inclusive European public are concerned are too important to be left to self-regulation.

Number of Pages in PDF File: 30

Keywords: European Union Citizenship, Jusidial Activism, Rottmann, Member State Autonomy

File available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117149