Supranational courts in Europe: a moderately communitarian turn in the case law on immigration and citizenship

ABSTRACT

Most interdisciplinary analyses intuitively depict the judiciary as an actor promoting post- or transnational conceptions of membership and equality in contemporary debates about citizenship and immigration. A qualitative survey of prominent judgments of two powerful supranational tribunals on five central themes identifies an intriguing twist in the case law. Over the past decade, the Court of Justice of the European Union in Luxembourg and the European Court of Human Rights in Strasbourg have frequently emphasised social affiliation with the host society, thereby cautiously embracing moderately communitarian narratives of membership, which tempered the traditional emphasis of both courts on equal treatment and residence security across borders. Institutionally, the outcome may be rationalised by a threefold limitation of the judicial function, which cannot bring about social change on its own, interacts with political actors and acknowledges the changing contours of the legal material.

KEYWORDS:

• European Union
• European Convention on human rights
• courts
• human rights
• citizenship
• law

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 By referring to ‘trans- or postnational’ membership, this contributions covers both the ‘vertical’ stratification of national belonging to include regional and continental attachment and the ‘horizontal’ recognition of membership in two or more communities; I do not claim that there is a uniform theoretical concept underlying either or both ideas.

2 I employ the term ‘supranational’ in a descriptive manner for institutions ‘above’ the state, which – in contrast to inter-state dispute settlement – are closely interwoven with domestic legal orders, irrespective of whether judgments have a direct ‘supranational’ effect from a legal doctrinal perspective.

3 For a list of all relevant cases, see the quarterly ‘Newsletters on European Migration/Asylum/Free Movement Issues’ of the Centre for Migration Law at the University of Nijmegen, https://cmr.jur.ru.nl; and the holistic analysis by Thym 2019.

4 Article 12 of the Association Agreement of 1963 states that the parties ‘agree to be guided by (free movement rules in the EU Treaties) for the purpose of progressively securing freedom of movement for workers between them’; moreover, the Preamble notes that it aims at ‘ever closer bonds’ and ‘will facilitate the accession of Turkey.’

5 Such assumption would have to ascertain to what extent enhanced (or less) rights for migrants coincide with the ECJ’s institutional self-interest.

6 Note, however, that the ECtHR justified the rejection of an absolute prohibition of expulsion for second generation immigrants by highlighting that the right to private and family life was subject to a limitation ‘in the interests of national security, public safety or the economic well-being of the country’ (ECHR 1950: Art. 8.2; ECtHR 2006: 55).