Daniel Thym

Mit der Staatsangehörigkeit wird man in rechtlicher Hinsicht ein vollwertiges Mitglied eines Landes. Deshalb ist es richtig, anlässlich der anstehenden Reform darüber zu diskutieren, was „Deutsch“ heutzutage heißt, auch wenn die Einbürgerung im Vergleich zum Daueraufenthaltsrecht, das eingebürgerte Menschen zuvor besitzen, nur noch wenige praktische Vorteile bietet. Ohnehin ist die Reform rechtlich gesehen kein Systemwechsel, sondern setzt pfadabhängig fort, was in den Jahrzehnten zuvor begann. Der „Doppelpass“ wird bei Kindern schon heute unkontrolliert vererbt, sodass die künftige Akzeptanz auch bei der Einbürgerung der Eltern nichts Grundlegendes ändert. Nichtsdestotrotz verbleiben theoretische Widersprüche beim Wahlrecht und Selbstbild, deren offene Diskussion dem Einwanderungsland im Idealfall hilft, einen zukunftsgerichteten Gemeinsinn zu erkunden.

Im Koalitionsvertrag verständigte sich die neue Bundesregierung auf die Einführung einer „Chancenkarte auf Basis eines Punktesystems“ als zweite Säule der Erwerbsmigration. Das klingt vielversprechend und verlangt dennoch vom Gesetzgeber zahlreiche Weichenstellungen. Es bestehen nämlich unterschiedliche Möglichkeiten, wie das künftige Punktesystem ausgestaltet werden kann. Der Beitrag bietet einen Überblick über die zentralen Fragen, die in den weiteren Beiträgen des vorliegenden Sonderhefts vertieft werden. Hierbei zeigt sich, dass die kategorische Trennung zwischen einer arbeitsvertragsbasierten Zuwanderung des Status quo und einem Punktesystem zur Jobsuche überdacht werden sollte. Beim Blick hinter die Kulissen eines künftigen Punktesystems ergeben sich Überschneidungen, vor allem bei einer möglichen Zulassung von solchen Personen, die über keine als gleichwertig anerkannte Qualifikation verfügen.

The fundamentally revised and extended second edition of the ‘Commentary on EU Immigration and Asylum Law’ comprises four thematic introductions, which are written in the style of an advanced textbook and which are meant to help practitioners, doctoral students and academics who are not familiar with immigration and asylum law to orientate themselves in a highly complex and politically sensitive area of the law. The general introduction starts with an introduction into the area of freedom, security and justice in terms of evolution of the Treaty regime, the objectives for law-making and political programming. It proceeds with an overview of principles of interpretation that guide the case law of the European Court of Justice and is, for that reason an important reference for those who which to understand the increasingly important judicial verdicts. The chapter concludes with comments on the territorial scope of application (optouts) and the constitutional status of human rights and refugee law within the EU legal order. More detailed comments can be fund in the introductory chapters to the different parts of the commentary and the detailed analysis of the different legislative instruments.

Events during 2015 and early 2016 revealed structural deficiencies at the heart of the EU’s asylum policy which allow us to reconstruct the ‘refugee crisis’ as a problem of integration through law. The analysis of systemic shortcomings and underlying explanations highlights regulatory and political pitfalls which any attempt to overcome the crisis will have to confront. It will be shown that the EU institutions have to reform both legal rules and governance structures – a challenge the recent Commission Proposals have started addressing. Yet the ‘refugee crisis’ is about more than legal design and compliance: asylum policy shows that the EU must be careful not to get trapped in a vicious circle of output deficits and political contestation, which complicates the resolution of existing governance deficits.

Mit der Expansion der EGMR-Rechtsprechung und dem Ausgreifen der EU-Grundrechtecharta erreicht die Internationalisierung das Verfassungsrecht. Aufgrund der großzügigen Anwendung der Charta durch den EuGH kommt es zunehmend zu einem doppelten Grundrechtsschutz, der die vom BVerfG bislang verfolgte Trennung der Grundrechtssphären erschüttert. Einen Ausweg bietet eine verfassungsrechtliche Neuausrichtung, die im Kern auf eine inhaltliche Annäherung von GG, EMRK und GRCh hinausläuft. Eine derartige materielle und prozessuale Umgestaltung der Grundrechtsarchitektur begünstigt eine Angleichung der Ebenen und bewahrt dennoch innerstaatliche Spielräume. Wenn nationale und überstaatliche Grundrechte in der Vielfalt zu einer neuen Einheit finden, kann sich das deutsche Öffentliche Recht in einem gesamteuropäischen Grundrechtsverbund neue Diskursräume erschließen.

Supranational citizenship is politically contested, the object of prominent Court rulings and has given rise to intense academic debate. The contributions to this volume scrutinise these contestations with a special emphasis on the position of the Court of Justice whose more restrictive judgments indicate that something fundamental may have changed. Analysing the contents and context of the case law, which have been the subject of numerous academic contributions, this book will broaden its outlook to political, social and normative factors that can influence the evolution of citizens’ rights, including the Brexit referendum and broader debates about immigration. Doing so will embed institutional practices into an analytical framework highlighting links between EU citizenship and the ongoing crisis of the European project and examining dynamics which may help rationalise the continuous reconfiguration of citizens’ rights. Citizens’ rights are contested from different sides. Firstly, it is questioned politically in several Member States mainly due to its alleged effect on the welfare state. Secondly, Union citizenship is challenged legally in a number of judgments which primarily concerned access to social benefits and third country national family members in situations without cross-border movement. Thirdly, the normative concept underlying Union citizenship is being scrutinised as a result of the alleged change of direction in the Court’s case law and the sense of crisis the European Union has been engulfed in recent years.

The constitutional foundations of Union citizenship are bound to remain unstable due to the doctrinal and conceptual ambiguity of supranational citizens’ rights. If that is correct, change need not present a linear progress towards ‘more’ citizenship, reflecting the EU’s famous self-description as ‘ever closer union’.  It could similarly result in friction, dead ends and retrogression. On this basis, this chapter sets out to explain the evolution of citizens’ rights as a reflection of broader trends. Our heuristic device for rationalising the constitutional embeddedness will be a juxtaposition of two competing models of the concept of transnational mobility. Their impact on the case law and institutional practice will be exemplified through closer scrutiny of three thematic leitmotifs defining most accounts of citizenship as regards to solidarity, political participation and identity.
Having reminded readers of the underlying reasons for the legal and conceptual ambiguity of Union citizenship, it will be demonstrated that institutional practice fluctuates between two models: one based on residence and the other focusing on social integration. As ideal types, these models influence the resolution of specific questions, although positions of policy actors will most likely reflect a blend, thereby reinforcing the overall trend towards constant variation and conceptual indeterminacy (below II.). The pertinence of this approach will be tested in relation to ongoing disputes about social benefits and transnational solidarity (III.), political participation and the significance to nationality (IV.) as well as migration and collective identities (V.). It will be shown that the evolution of citizens’ rights in these areas is intimately connected to broader constitutional trends, such as the euro crisis, the failure of the Constitutional Treaty or arguments about immigration. Answers to specific questions in the case law and the political process can be rationalised as building blocks of an EU that accepts the limits of the federal vision by accommodating the continued diversity among Member States.

The Court of Justice is a central actor. It is the subject of many studies, most of which concentrate on the internal market or citizenship. By contrast, the role of judges in migration law is rarely discussed, although it is politically contested and features prominently in recent case law. That is why this contribution takes a bird’s eye view on the role of the ECJ in that domain. It critically assesses a concern about ‘judicial passivism’ among academic observers and demonstrates that there are good constitutional reasons why judges act carefully in migratory matters. Closer inspection of several dozen judgments shows that most of them are defined by an ‘administrative mindset’; they focus on statutory interpretation and seek to realise the position of the legislature. Any move towards a more ambitious ‘constitutional imagination’ would require feedback loops between legal developments, political processes and broader societal debates.

Many experts of EU migration law deal with ECJ judgments on a regular basis, but they rarely reflect on how individual rulings on diverse themes such as asylum, family reunification or return relate to each other. This article fills that gap and presents a horizontal analysis of 155 judgments combining quantitative and qualitative findings. Our statistical survey shows that selected themes and references from certain countries dominate the ECJ's activities. In qualitative terms, the article considers three over-arching themes: the concept of public policy; the practice of statutory interpretation, including in light of objectives: the principle of proportionality and interaction with domestic courts. Our study shows that the search for cross-sectoral coherence defines much of the case law, although success of this venture is compromised by enduring inconsistencies, which complicate the emergence of a reliable and predictable judicial approach towards the interpretation of secondary legislation on migration.

The free movement of persons is central to the legal and political identity of the European project; it is the most important right attached to Union citizenship and defines the self-perception of those holding the status. Nevertheless, the precise legal standards for the delimitation of residence and equal treatment rights often remained elusive, in particular with regard to citizens with scarce resources. It will be demonstrated that Union law and corresponding Court judgments (most recently Brey and Dano) fluctuate between two visions of how to perceive EU citizenship and the limits of transnational solidarity: one conception based on territorial presence and another promoting social cohesion.

Integration policy instruments disclose how European societies define themselves in response to migration. Pre-departure civic integration tests are emblematic of a new focus on social cohesion and have been a bone of contention in political and academic circles. That is why the ECJ's long-awaited verdicts on Dutch integration requirements for spouses and long-term residents are a milestone in the construction of an EU immigration policy. This contribution critically analyses the rationale and implications of the P & S and K & A rulings at different levels starting with doctrinal ambiguities on the part of judges when interpreting secondary legislation. On this basis, it relates the outcome of both cases to the broader constitutional context in terms of human rights, the doctrine of individual statutory rights and non-discrimination guarantees – together with a contextual outlook on factors influencing the reorientation of integration policies.

The fundamentally revised and extended second edition of the ‘Commentary on EU Immigration and Asylum Law’ comprises four thematic introductions, which are written in the style of an advanced textbook and which are meant to help practitioners, doctoral students and academics who are not familiar with immigration and asylum law to orientate themselves in a highly complex and politically sensitive area of the law. The introduction into the ‘Legal Framework for Entry and Border Controls’ starts with general remarks on the evolution of the Schengen area and the opt-outs for the UK, Ireland and Denmark. It continues, on this basis, with one of the most detailed and reliable analyses of the scope of Union competences under Article 77 TFEU, whose provisions serve as the legal bases for supranational legislation on visas and border controls, including the move towards an integration management system. The contribution also introduces readers to overarching principles on cooperation with third countries and the maintenance of law and order under Article 72 TFEU. It concludes with a description of the international legal framework by focusing on whether there is a right to enter EU territory and discussing the (extra-)territorial scope of human rights guarantees.

The fundamentally revised and extended second edition of the ‘Commentary on EU Immigration and Asylum Law’ comprises four thematic introductions, which are written in the style of an advanced textbook and which are meant to help practitioners, doctoral students and academics who are not familiar with immigration and asylum law to orientate themselves in a highly complex and politically sensitive area of the law. The introduction into the ‘Legal Framework for EU Immigration Policy’ starts with general remarks on the evolution of immigration policy and the opt-outs for the UK, Ireland and Denmark. It continues with one of the most detailed and reliable analyses of the scope of Union competences under Article 79 TFEU, whose provisions serve as the legal bases for supranational legislation on immigration. On this basis, readers are introduced with overarching principles and objectives for lawmaking, including non-discrimination guarantees, abuse, the concept of migrant integration and the constitutional distinction between the free movement rights of Union citizens and the distinct guarantees for third-country nationals. The contribution concludes with a description of the international legal framework with an emphasis on the protection of private and family life under Article 8 ECHR and the significance of bi- and multilateral agreements for EU immigration policy.

The fundamentally revised and extended second edition of the ‘Commentary on EU Immigration and Asylum Law’ comprises four thematic introductions, which are written in the style of an advanced textbook and which are meant to help practitioners, doctoral students and academics who are not familiar with immigration and asylum law to orientate themselves in a highly complex and politically sensitive area of the law. The introduction into the ‘Legal Framework for EU Asylum Policy’ starts with general remarks on the evolution of asylum policy and the opt-outs for the UK, Ireland and Denmark. It continues, on this basis, with one of the most detailed and reliable analyses of the scope of Union competences under Article 78 TFEU, whose provisions serve as the legal bases for supranational legislation on asylum. The contribution also introduces readers to overarching principles regarding mixed flows and the prescription of inter-state solidarity in Article 80 TFEU. It concludes with a description of the international legal framework with an emphasis on the Geneva Convention and the European Convention on Human Rights for asylum policy. In doing so, it discusses, for instance, the status and interpretation of the Geneva Convention within the EU legal order and the pertinence of the human rights enshrined in the ECHR for status determination, reception conditions and asylum procedure.

Rules on family reunion are a complex and controversial area of law whose rationalisation is complicated by the overlap of distinct legal regimes for Union citizens and third-country nationals. This contribution sets out to reconstruct the evolution and rationale of the rules in question, including the change of direction on family reunion in the context of free movement in more recent ECJ case law. It explains the judicial reorientation on the basis of doctrinal considerations, the constitutional setting and the broader socio-economic context. While the generous family reunion regime for Union citizens followed the equality-based logic of economic and social policy objectives at the time, the change of direction can be attributed to the emergence of migration law as a distinct policy field within the area of freedom, security and justice. Human rights complement Union citizenship as an alternative frame of reference for deciding individual cases. This contribution cannot unmake the continued overlap of both sets of rules and the uncertainties this entails, but it can support its reconstruction by deciphering the underlying reasons for the instability of the case law.

Scholarship on EU law is well established but arguably lacks sensitivity to the methodological characteristics of transnational discourse. The defining features of the supranational legal order are more fluid than those of domestic legal systems and, moreover, academic debates occur in different languages. This contribution highlights the limits of transnational debates about EU law through a quantitative assessment of both citation practices and the geographical spread of authorship in specialised law journals. Against that background, it uses the example of Germany to designate areas defining national specificities in the methodological approach towards EU law. In doing so, this contribution considers language regimes, publication formats, the role of legal education and practice, the relative weight of theoretical and doctrinal approaches, as well as interaction with international and constitutional law.

As a supranational polity, the European Union depends – much more than a nation-state – upon the law and judges to preserve its viability and to develop its constitutional infrastructure. It therefore did not come as a great surprise when the ECJ started exploring the potential of the Treaty rules on Union citizenship. However, the outcome of individual cases and the overall orientation of the case law have remained controversial. There was and remains nothing inevitable in the evolution of Union citizenship, since there are different visions of how to conceptualise the legal rules which direct judicial decisions and underlie academic interventions on the topic (below II). To highlight these divergent trajectories supports an enhanced methodological sensitivity on the part of academics, who often argue for particular outcomes without explicitly explaining their underlying decisions and the alternatives they rejected (III).

Against this background, this contribution will extrapolate three trajectories which define the academic debate on the judicial evolution of Union citizenship. Many authors support a certain degree of ‘aspirational citizenship’ that promotes social change and supports the inclusion of outsiders, such as third-country nationals (IV). In contrast, proponents of ‘citizenship as a legal creation’ focus on the wording and structure of the EU Treaties: they emphasise the need for sound doctrinal hermeneutics, including respect for the wider constitutional landscape (V). Finally, ‘citizenship as a social fact’ explores the empirical underpinnings of citizens’ rights and highlights their corresponding weaknesses (VI). Throughout this chapter, I will use selected examples to explain the relevance of these routes in the resolution of individual cases disclosing the status of Union citizenship.

For decades, the relationship between the German Bundesverfassungsgericht and the European Court of Justice has captured the imagination of European lawyers. Many European lawyers are fascinated by a potential clash between Karlsruhe and Luxembourg, and have spent hours reflecting on a conflict, which has so far been limited to shadow boxing. The underlying reason for the absence of open conflict may be the practice of indirect judicial dialogue, with both courts cautiously observing each other and their respective case law. Arguably, the very idea of constitutional dialogue entered the European debate when the German constitutional court rejected the unconditional supremacy of EU law in the Solange cases. With a view to the human rights dispute, its Maastricht judgment famously stated: ‘the [German] Court exercises its jurisdiction … in a “relationship of co-operation” with the European Court.’

The human rights saga is not the only one dimension of the judicial conversation. Like a good football match, interaction between the German and the European court has gone through different phases. In the early minutes of the game, the German court was on the attack. Its Solange cases effectively forced the ECJ to develop unwritten human rights standards at the European level. At the time, most observers agreed that the German court was the dominant player (Section II). The success of this undertaking motivated Karlsruhe to repeat its strategy. In its Maastricht judgment the German court put pressure on Luxembourg to take the delimitation of competences seriously. Again, it wanted to force its vision of European constitutionalism upon the ECJ. This time, however, it had a limited impact only. The last 15 years have been like the middle-phase of a football match: the two courts have cautiously observed each other in midfield (Section III).

In its Lisbon judgment Karlsruhe changed its tactics. Instead of projecting the German understanding of human rights or competences upon the ECJ, the Bundesverfassungsgericht adopted a defensive strategy. It accepted the interpretative autonomy of Union law and retreated to the domestic arena (the penalty box in our football metaphor). Its constitutional identity benchmark established national sovereignty as the last line of defence. Behind that line the ultimate trophy of European federal statehood waited to be conquered. The game would be over; the German court would abandon its claim of ultimate authority (Section IV). But this may not happen in our lifetime. As you know, the Germans are, at least in football, have a good defence. Arguably, the constitutional identity standard may contribute to a new constitutional balance between national and European legal orders (Section V).

Debates about differentiated integration are among the rituals of European integration. Whenever the EU enters a critical stage, politicians and academic observers evoke the option of ‘multiple speeds’, ‘concentric circles’ or related terminology and call upon some Member States to proceed towards closer integration without the participation of others. More recent arguments about differentiated integration replicate earlier debates and yet, there is something novel about them. It is true that the experience with various forms of differentiated integration over the past two decades has been fairly positive: defence policy, justice and home affairs and the generic mechanism for enhanced cooperation demonstrate that differentiated integration within the EU framework may proceed rather smoothly in practice. Also, the crisis of monetary union does not originate primarily in the asymmetric non-participation of some Member States, but in the structural deficits of both the Treaty design and its implementation. This shows that differentiated integration can support the integration process.

What is new about recent developments, however, is the pertinence and visibility of differentiated integration as a result of the euro crisis. It is no longer a peripheral occurrence, but takes centre stage in legal and political debates. The assessment of the constitutional implications of differentiated integration has become a vital question for the future of Europe: Does it undermine the supranational rule of law? Is Union law capable of domesticating ‘satellite treaties’ outside the EU framework? What are the consequences for the institutional balance and the role of Member States? In addressing these questions, this contribution will defend the proposition that legal difficulties can be contained – both in the case of intra-EU differentiation and satellite treaties under public international law (III.). Differentiated integration may stabilise the rule of law by accommodating internal tensions and heterogeneities, while it may, at the same time, undermine the legitimatory infrastructure of the European project (IV.).

From a historic perspective, the argument about parliamentary involvement in foreign affairs continues the struggle between the ancient prerogatives of the monarch and the novel claims for democratic self-governance. Foreign policy was one of the last strongholds of royal powers which often seemed to be beyond the reach of the democratically elected parliamentarians – as is illustrated so well by the British legal concept of foreign affairs as a ‘Crown prerogative.’ Surprisingly at first sight, the democratisation of our national constitutional orders and the recent parliamentarisation of the European Union have not fundamentally reversed the picture. Parliamentary oversight of foreign affairs continues to trail behind the role of parliaments in domestic policies. Within the European Union, this relates not only to the Common Foreign and Security Policy with its largely intergovernmental design, but similarly extends to various aspects of external EC policies which in many cases retain limited parliamentary involvement. Is there a monarchic relic in the Union’s supranational constitutional order? Or does the analysis of parliamentary accountability of European foreign affairs rather point at an underlying conceptual specificity of external relations which justifies and guides the special constitutional treatment of EU international relations?

Any legal analysis of parliamentary powers in foreign affairs must assign the leading part to the parliamentary control of international treaties as the international equivalent of domestic laws. There are however important differences between the rigidity of domestic legal rules, whose adoption, interpretation and change follows much stricter procedural patterns than the often dynamic, evolutionary and practice-dominated international legal regimes, which the scrutiny of parliamentary control of international treaties must take into account (section II). Shared competences between the Member States and the European Community are a peculiar but central feature of the European legal order which gives national parliaments an integral role in international law-making whenever the Community and the Member States act jointly through the adoption of a ‘mixed agreement.’ This well-settled practice has recently been challenged by the European Union acting under the second and third pillar, with a failed attempt to take over the traditional function of the Member States and their national parliaments (section III). The entry into force of the Constitutional Treaty would not fundamentally reverse the picture of parliamentary involvement in international treaty-making at the European and national level – despite some important new rights for the European Parliament.

International relations are much less than domestic politics dominated by rule-making. The main regulatory instrument of the Community method are legal rules adopted by the European institutions, published in the Official Journal, transposed and implemented by national legislators and administrations and interpreted uniformly by the European court system. International relations however are primarily about the political positioning in favour or against something: North Korea will not give up its nuclear weapons, only because the European Union says so in its Official Journal. Instead, foreign policy requires the identification of strategic goals, the development and constant adaptation of methods of their realisation and implementation. You may call it diplomacy, but in any case it differs substantially from domestic politics. This does not imply that parliaments should be powerless in this respect, but their channels of influence are much more indirect, centred around their control of executive actors, the tentative projection of an original ‘parliamentary diplomacy’, budgetary control and exceptional cases of direct involvement (section IV). The persistence of the special treatment of the European Parliament in foreign affairs and the identification of substantive differences between domestic policies and international relations leads us to more general considerations on the underlying conceptual specificity of the European foreign affairs constitution for which the specific role of the European Parliament is an important indicator (section V).

The European Parliament is confident of its democratic credentials. Portraying itself as the true embodiment of the citizens’ will it has been repeatedly empowered by national governments in consecutive Treaty reforms and successfully shifted the institutional balance in its favour in the day-to-day management of inter-institutional decision-making. Despite this remarkable success the EU’s Common Foreign and Security Policy (CSFP) continues to defy calls for enhanced parliamentarization. As early as 1986 when the Single European Act incorporated the previous practice of European Political Cooperation into the legal framework of the present European Union, the European Parliament (EP) “emphasis(ed) its consternation with the codification of the existing split between Community activities and Political Cooperation” and “deem(ed) necessary to be more closely involved in the development of Political Cooperation through adequate mechanisms.” Surprisingly at first sight, not much has changed until this day with the Parliament still being largely excluded from the course of CFSP which remains by far the most intergovernmental area of European decision-making.

This article explores the role of the EP in the European Union’s CFSP with a view to conceptual reasons underlying the EP’s pervasive exclusion from decision-making in foreign and security policy. The constitutional status quo of the Treaty of Nice lays the starting-point for our survey, whose course not even the Constitutional Treaty would have altered substantially (section I). The EP’s budgetary powers are the only instrument through which it can exercise measurable influence on the course of CFSP – albeit with considerable drawbacks on its standing in the eyes of the Council lamenting about the EP’s reluctance to provide “adequate” financial resources (section II). A closer look at the living constitution of institutional activities in Brussels and Strasbourg reveals a reinforced activism of the MEPs in the foreign policy field, although its substantive contributions may not necessarily transcend the “virtual” world of parliamentary discourse and influence the actual decision-making in the Council (section III). The continued involvement of national parliaments in CFSP does not substantially alter the situation (section IV). Eventually, national constitutional arrangements confirm that the EP’s limited role in CFSP is not necessarily an atypical deviation from the orthodoxy of the Community method but follows an underlying constitutional rationale of executive prerogatives in foreign affairs (section V).

The free movement of persons is central to the legal and political identity of the European project; it is the most important right attached to Union citizenship and defines the self-perception of those holding the status. Nevertheless, the precise legal standards for the delimitation of transnational residence and equal treatment rights often remained elusive, in particular with regard to citizens with scarce ressources. It will be demonstrated that Union law and corresponding Court judgments fluctuate between two visions of how to perceive EU citizenship and the limits of transnational solidarity in free movement cases: one conception based on territorial presence and another promoting social cohesion.

When it comes to the protection of human rights of foreigners, the European Court of Human Rights (ECtHR) in Strasbourg has long assumed a pioneering role. It was the first international court to extend the human rights of foreigners beyond the sphere of refugee protection in cases of forced migration, which have been subject to international law guarantees since the 1950s, to voluntary migration on the basis of Article 8 ECHR. In 1991, the Court first qualified the deportation of a foreigner as a violation of his right to family life; ten years later, the judges in Strasbourg obliged a Contracting State to grant cross-border family reunion in its territory with family members living abroad; in recent years, the Grand Chamber has further extended the protective reach of Article 8 ECHR to cover long-term residence status, including a potential right to regularise illegal stay. This protection of long-term residence status shall be the subject of this article, since it accentuates the loss of ‘sovereign’ state control over the entry and stay of foreigners. Is the traditional distinction between foreigners without residence security and national citizens obsolete?

This contribution begins with an examination of the ECtHR’s standpoint from a legal-dogmatic angle. Despite its radical judgments, the Court has always been careful not to overstretch its case law by leaving some leeway to the Contracting Parties under the margin of appreciation doctrine, also when it comes to the protection of long-term residence status and the corresponding right to regularise illegal stay (part 2). On this basis, the remainder of this contribution explores the conceptual implications of Strasbourg’s case law. Almost twenty years ago, the ECtHR’s judicial innovations were first identified as the manifestation of an emergent post-national society with an incipient form of transnational membership, which supersedes national citizenship. Notwithstanding the originality and relevance of the judicial approach, this chapter supports a differentiated evaluation. Article 8 ECHR gives a voice to migrants’ perspectives within our legal orders by protecting long-term residence. This advance of human rights law into cross-border migration rejects the assertion of unfettered state control over the entry and stay of foreigners, but does not necessarily lead towards de facto citizenship. Protecting the human rights of all non-citizens is in itself an important cosmopolitan achievement (part 3).

It is widely accepted that the ECJ judgments on the Ankara Agreement, the Additional Protocol and the Decisions of the Association Council (hereinafter: EU-Turkey association acquis) are crucial points of reference for migration law and wider bilateral relations. While many contributions rightly focus on the formidable doctrinal questions, which individual judgments or lines of cases bring out, this chapter sets off to scrutinise the role of the Court of Justice (ECJ) from a broader perspective. In doing so, this chapter embeds the case law into a wider analytical framework, thereby illuminating the legal and constitutional infrastructure, which guides and explains individual judgments and which marks aspects for critical reflection.

There is much confusion among EU experts about the legal status of third-country nationals. This is hardly surprising, since this uncertainty reflects conceptual tensions at the heart of the European project. For half a century, European integration has been defined by the abolition of borders. Through-out Europe borders have been erased both legally under the fundamental freedoms and physically through the creation of the Schengen area. Against this background it was no far fetched assumption that the European Union would grant workers from Ukraine or spouses from Algeria similar rights as EU citizens living in another Member State. Yet, Europe’s mission of promoting transnational freedom is not replicated in the area of freedom, security and justice. Instead of dismantling borders, EU activities re-confirm the relevance of borders towards third states – both physically through external border controls and legally under the emerging EU immigration and asylum acquis. This article identifies underlying motives and resolves the puzzle by proposing a positive constitutional rationale for the substantive rules of European migration policy.

For the founding fathers the establishment of the European Communities was a foreign policy project. It is therefore not surprising that internal and external Community policies are governed by comparable regimes. In its landmark judgment on implied external powers the Court of Justice paradigmatically rationalises the wide understanding of EC competences with the impact of international rules on internal policies: Whenever European laws are promulgated “the Member States cannot, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope.” Also, concurrent activities of the Member States cannot be tolerated, “since any steps taken outside the framework of the Community institutions would be incompatible with the unity of the Common Market and the uniform application of Community law.” To this date, the constitutional foundations of European foreign affairs are characterised by the assumption of supportive parallelism between external and internal policies. In view of the constant expansion of European foreign affairs their analysis however requires a partial detachment from the internal perspective by taking on board the particularities of international relations.

Objectives and themes of European foreign affairs nowadays transcend their supplementary character as an instrument for the protection and projection of internal rules with the dynamic evolution of the Common Foreign and Security Policy (CFSP) as an alternative point of reference. Its progress is not dominated by supranational law-making; rather the CFSP is typified by the identification of strategic goals and the constant adjustment of methods for their realisation. This condition of international relations explains the legal and institutional regime governing the CFSP, thereby establishing the constitutional dichotomy of European foreign affairs between intergovernmentalism and supranationality (section IV). Irrespective of the novelty of foreign policy and defence integration the supranational Community policies under the current EC Treaty remain the historic starting point and continuous centre of gravity of the legal analysis of European foreign affairs. In the supranational arena the parallelism between the constitutional foundations of internal and external action is most tangible – even if the decision-making procedure and the substantive constraints exemplify a variation on the supranational model. These particularities of international relations law explain the deviations from the orthodoxy of the Community method (section III).

It remains a challenge for European foreign affairs to guarantee the coherence and complementarity of the different fields of external action in the daily decision-making practice. This concerns the coexistence of the intergovernmental and the supranational spheres just as much as the cooperation with the Member States’ national foreign policies. Existing legal obligations mandate and support the horizontal and vertical cooperation between the Community, the Union and the Member States; one step further the reform project of the Lisbon Treaty sets sight on the pragmatic connection of the different level of foreign policy formulation and articulation with the ultimate objective of uniform external representation (section V). Coexistence and cooperation of the Community, the Union and the Member States is one particularity of European foreign affairs; their wider constitutional analysis therefore requires a reflection about the background and assumptions of our constitutional argument. They are presented in the preliminary section on the constitutional foundations and particularities of foreign affairs, which cannot ignore the continuous transformation of the international legal and political context.

Both ‘personhood’ and ‘human rights’ are basic categories of law with a long tradition in (Western) thought. Historically, not all human beings were considered equal persons before the law, although most jurisdictions in Europe moved towards the principled recognition of legal personality, within domestic legal orders at least, during the 19th century. Against this background, it does not come as a surprise that the human right to equal personhood before the law enshrined in Article 16 International Covenant on Civil and Political Rights and Article 6 Universal Declaration of Human Rights finds no equivalent in the European Convention on Human Rights and the EU Charter of Fundamental Rights and has little practical impact in the EU legal order. As an abstract category, the human right to legal personality may not have much relevance, although a reminder of historic debates in civil law jurisdictions shows striking similarities to contemporary debates about migration. From today’s perspective, the delineation of fundamental rights and citizenship reveals a surprising conceptual ambiguity over the role of the individual underlying basic concepts of Union law.

This chapter will focus on the category of the right-bearer in terms of groups of subjects endowed with individual rights as a heuristic device to reconstruct different conceptions of personhood in Union law. This undertaking concentrates on fundamental rights of individuals in the EU Treaties covering both human rights sensu stricto and the classic guarantees to transnational free movement, which lie at the heart of the single market. Closer inspection shows that there is no uniform category of the right-bearer in Union law and that subjects that may invoke fundamental guarantees changed over time. The argument will start with an explanation of the historic background of legal personhood and related human rights guarantees (see below II) and explore the status of the individual in EU law thereafter (see below III). On this basis, it will present what I call the ‘citizenship-personhood-cleavage’ defining the interplay between Union citizenship and rules on immigration and asylum together with a proposal of how to reconstruct the distinction from a constitutional perspective (see below IV).

EU primary law and official strategy papers support the promotion of international migration governance. The success of this venture would be a remarkable achievement: migration would – as the ‘human dimension’ of globalisation – eventually be subject to international norms and institutions. Yet, this official enthusiasm should be tempered. Firstly, the EU’s quest for migration governance pursues two countervailing objectives, since it is meant to enhance state control, while also protecting human rights and refugee law. If international migration governance is to succeed, these countervailing imperatives need to be balanced.

Secondly, successful migration governance with third states requires reciprocal give-and-take which motivates the EU and its partners to engage into cooperative projects and support their implementation. Without meaningful compromises, migration governance initiatives will re-main dead projects – and the trials and errors of existing projects present us with mixed results. Readmission and visa facilitation agreements are the only examples of successful collaboration. By contrast, the much touted ‘mobility partnerships’ have largely failed.

Thirdly, EU institutions have often shown their stamina not to be frustrated by initial set-backs. Thus, the informal policy framework of mobility partnerships may gradually lead to more meaningful cooperation, although it is hindered by structural impediments, if legal, conceptual and political obstacles complicate cooperation. Member States cautiously guard their prerogatives; migration policy requires political trade-off between countervailing interests, which rhetorical invocations of ‘partnership’ cannot conceal; and cooperation is not necessarily in everyone’s interest. This explains why the EU aspires towards international migration governance, although existing projects have so far yielded limited results.

Dozens of articles and monographs have been written about a potential conflict between the German Federal Constitutional Court (hereinafter FCC) and the European Court of Justice (ECJ), which has so far been limited to shadow-boxing. Karlsruhe relied upon dissuasive tactics and was quite successful. Its warnings encouraged the ECJ to develop reliable human rights standards, restrained an expansive reading of Union competences and fostered judicial respect for national constitutional singularities. Recently, however, power games escalated when the FCC fired a forceful warning shot towards Luxembourg and pronounced that the latter’s Åkerberg Fransson ruling might have been ultra vires. Arguably, this hand-wringing about the precise delimitation of the Charter of Fundamental Rights (hereinafter the Charter) reveals deeper conflicts about how to resolve jurisdictional overlap. This contribution starts off with a presentation of the background, trigger, contents and context of the German decision. It will proceed with an explanation why the dispute about the Charter will be difficult to resolve, since both courts pursue different visions of the relative autonomy of national decision-making in the field of human rights. While the FCC propagates a dualist 'separation thesis', the ECJ focuses on reflexivity and fusion. The third section will indicate theoretical implications of divergent approaches which, arguably, reflect deeper conflicts about the pluralist interaction of legal orders. This contribution will conclude with a positive turn demonstrating the potential for pragmatic appeasement despite fundamental disagreement.

The ECJ’s citizenship case-law features among the most prominent judicial developments in Luxembourg during the past 15 year. This is hardly surprising given that citizenship has always been a projection sphere for different visions of social justice. Revisiting the classic dispute about social benefits demonstrates structural impediments of the judicial construction. Besides, a common thread besides social benefits stands out: the legal status of third-country national family members, which arguably constitutes Union citizenship’s new frontier. With regard to both lines of cases, the paper scrutinises the horizontal interaction between the Court and the EU legislator and the vertical balance of power with regard to Member States, which lie behind much of the political and academic criticism of the Court and explain the limits of judicial innovation. Conceptual ambiguity also defines underlying visions; there is fundamental disagreement how to construe ‘true’ citizenship, in particular with regard to the (indirect) inclusion of third-country nationals. These conceptual ambiguities reinforce constitutional impediments originating in the vertical and horizontal balance of power.

In der Kontroverse um die Unionsbürgerschaft steht derzeit ein Thema im Vordergrund: die Rechtsstellung von drittstaatsangehörigen Familienmitgliedern. Dieser neue Aufmerksamkeitsschwerpunkt ist kein Zufall, sondern entspringt dem transnationalen Charakter der Unionsbürgerschaft, weil die Freizügigkeit durch den Familiennachzug gefördert werden soll. Diese abgeleiteten Rechte der Familienmitglieder deuteten der EU-Gesetzgeber und der EuGH immer wieder expansiv – zuletzt infolge des Ruiz Zambrano-Urteils. Freilich stößt diese Expansion der Unionsbürgerrechte an Grenzen, weil der EU-Bürgerstatus nicht alles regeln soll und kann. Aus diesem Grund akzentuiert der Beitrag einen alternativen verfassungsrechtlichen Bezugsrahmen: das Migrationsrecht im Raum der Freiheit, der Sicherheit und des Rechts. Es zeigt sich, dass jenseits der Unionsbürgerschaft kein rechtliches Niemandsland herrscht. Die Menschenrechte leiten den Familiennachzug dort, wo die Unionsbürgerschaft nicht hinreicht.

Mit der Expansion der EGMR-Rechtsprechung und dem Ausgreifen der EU-Grundrechtecharta erreicht die Internationalisierung das Verfassungsrecht. Aufgrund der großzügigen Anwendung der Charta durch den EuGH kommt es zunehmend zu einem doppelten Grundrechtsschutz, der die vom BVerfG bislang verfolgte Trennung der Grundrechtssphären erschüttert. Einen Ausweg bietet eine verfassungsrechtliche Neuausrichtung, die im Kern auf eine inhaltliche Annäherung von GG, EMRK und GRCh hinausläuft. Eine derartige materielle und prozessuale Umgestaltung der Grundrechtsarchitektur begünstigt eine Angleichung der Ebenen und bewahrt dennoch innerstaatliche Spielräume. Wenn nationale und überstaatliche Grundrechte in der Vielfalt zu einer neuen Einheit finden, kann sich das deutsche Öffentliche Recht in einem gesamteuropäischen Grundrechtsverbund neue Diskursräume erschließen.

Applying the European Convention on Human Rights (ECHR) to immigration cases has always been a balancing exercise between the effective protection of human rights and the Contracting States’ autonomy to regulate migration flows. In its recent case law, the European Court of Human Rights in Strasbourg (ECtHR) has considerably extended the protective scope of Article 8 ECHR by granting autonomous human rights protection to the long-term resident status independent of the existence of family bonds under the heading of ‘private life.’ This has important repercussions for the status of legal and illegal immigrants across Europe, since the new case law widens the reach of human rights law to the legal conditions for leave to remain, effectively granting several applicants a human right to regularise their illegal stay. The contribution analyses the new case law and develops general criteria guiding the application of the ECHR to national immigration laws and the new EU harmonisation measures adopted in recent years.

The reform of the constitutional foundations of Europe's Common Foreign and Security Policy (CFSP) featured prominently on the agenda of the European Convention. To the great surprise of many observers the much lamented absence of a common European response to the war in Iraq did not prevent the Convention from agreeing upon an ambitious reform package in the foreign-policy field. This article explores the legal implications of the new institutional balance for European foreign policy envisaged by the Convention against the background of the achievements and deficiencies of Europe's existing foreign policy regime. Thereby, we shall see in how far the Convention has met the original goal set by the Laeken European Council to consider reform steps to strengthen the Union's ability to 'shoulder its responsibilities in the governance of globalisation.'

Die Stärkung der EU-Integration in der Außenpolitik gehört zu den traditionellen Zielen der meisten Europapolitiker. Es geht um nicht weniger als einen Schritt hin zum oft vagen Endziel einer politischen Union. Doch trotz des Strebens nach gemeinsamer Außenpolitik gestaltete sich die Zusammenarbeit schwierig. Nach dem Scheitern der Europäischen Verteidigungsgemeinschaft in den 1950er-Jahren konzentrierte sich die Integration lange Jahre auf die Wirtschaft, während die Außenpolitik am Rande des Integrationsprozesses angesiedelt blieb. Anstelle der supranationalen Gemeinschaftsmethode entwickelte sich in der Außenpolitik eine Zusammenarbeit auf intergouvernementaler Grundlage. Dies änderte sich nur partiell, als der Vertrag von Maastricht die „Gemeinsame Außen- und Sicherheitspolitik“ (GASP) als zweite Säule der Europäischen Union offiziell begründete. Bis zum heutigen Tag begründet die GASP, zu der auch die „Gemeinsame Sicherheits- und Verteidigungspolitik“ (GSVP) gehört,  ein Politikfeld, das innerhalb der EU-Rechtsordnung eigenen Regeln folgt. Dies ändert jedoch nichts an der prinzipiellen Bedeutung der GASP für die Ambitionen des EU-Integrationsprozesses, der seine Finalität nicht auf die Wirtschaftsintegration beschränkt, sondern das Ziel umfasst, durch eine gemeinsame Außenpolitik der Europäischen Union „ihre Werte, ihre grundlegenden Interessen, ihre Sicherheit, ihre Unabhängigkeit und ihre Unversehrtheit zu wahren.“