Papers by Justin Lindeboom
European Journal of Legal Studies, 2021
This article aims to reconstruct and theorise the autonomy of the European Union (EU) legal syste... more This article aims to reconstruct and theorise the autonomy of the European Union (EU) legal system by drawing on Hartian legal theory. It comprises four claims. First, the European Court of Justice's (ECJ) 'foundational case law' on autonomy-and direct effect and supremacy as its corollaries-is conceptualised as a second-order thesis about the genus to which EU law belongs (the 'autonomy thesis'). Second, the ECJ's reliance on the full effectiveness of EU law as a justification for the autonomy thesis alludes to the deep connection between legality and effectiveness, but this connection cannot rationally explain the normativity of the autonomy thesis as an internal statement of law. Third, in order to provide such an explanation, the autonomy thesis is reconceptualised as an 'internal recognitional statement' by which the ECJ asserts a normative formulation of an autonomous EU rule of recognition. Fourth, within this Hartian analysis of the EU legal system, the doctrines of direct effect and supremacy lack self-standing analytical value. This article finishes with some very preliminary observations on a well-known objection against the autonomy of EU law based on the attitudes and perspectivism of national courts. two anonymous reviewers for helpful comments on earlier drafts. The usual disclaimer applies.
Citizenship and Residence Sales: Rethinking the Boundaries of Belonging (Dimitry Kochenov and Kristin Surak eds., Cambridge University Press), 2021
European Union (EU) Member States have long competed to attract Foreign Direct Investment (FDI) a... more European Union (EU) Member States have long competed to attract Foreign Direct Investment (FDI) as well as other forms of foreign investment through a panoply of incentives targeted at companies, ranging from new infrastructure to worker training. This form of regulatory competition, both against third countries and against other EU Member States, became fiercer in the wake of the global financial crisis and the subsequent Euro crisis, which have prompted a sharp drop of inward foreign investment in Europe, in a broader context of negative and low growth rates, a sovereign debt crisis, and a precipitous decline of outflows of FDI worldwide.
Given the starkly reduced FDI inflows after the 2008 financial crisis and the subsequent Euro crisis, we explore the design of investment migration programmes as another investment incentive in the toolkit of EU Member States, albeit targeted at individuals instead of companies. We hypothesize, firstly, that investment migration programmes have flourished as a result of a match between supply – i.e. the goods which Member States can offer through investment migration programmes – and demand for these goods especially on the part of new investors from third countries. Secondly, the production of supply has been incentivized by the recent great economic downturn which saw many EU Member States search for foreign capital inflow, while EU membership imposed constraints on them to incentivize FDI.
In section 2, we briefly revisit some of the major themes of the financial and economic crisis in Europe, and the Eurozone in particular, including FDI inflows, showing how EU membership constrains the options for the Member State’s attempts to attract foreign investment. In section 3, we show that European investment migration programmes may be regarded as an additional tool in the EU Member States’ toolkit to attract foreign capital. In section 4, we situate the proliferation of investment migration programmes in the context of the Euro crisis. Section 5 concludes.
European Journal of Legal Studies, 2020
This article aims to reconstruct and theorise the autonomy of the EU legal system by drawing on H... more This article aims to reconstruct and theorise the autonomy of the EU legal system by drawing on Hartian legal theory. It comprises four claims. First, the ECJ's 'foundational case law' on autonomy – and direct effect and supremacy as its corollaries – is conceptualised as a second-order thesis about the genus to which EU law belongs (the 'autonomy thesis'). Second, the ECJ's reliance on the full effectiveness of EU law as a justification for the autonomy thesis alludes to the deep connection between legality and effectiveness, but this connection cannot rationally explain the normativity of the autonomy thesis as an internal statement of law. Third, in order to provide such an explanation, the autonomy thesis is reconceptualised as an 'internal recognitional statement' by which the ECJ asserts a normative formulation of an autonomous EU rule of recognition. Fourth, within this Hartian analysis of the EU legal system, the doctrines of direct effect and supremacy lack self-standing analytical value. This article finishes with some very preliminary observations on a well-known objection against the autonomy of EU law based on the attitudes and perspectivism of national courts.
Kälin and Kochenov's Quality of Nationality Index, 2020
This paper is the introduction to the QNI, aiming to show the avenues of demystifying the concept... more This paper is the introduction to the QNI, aiming to show the avenues of demystifying the concept of citizenship through the use of data. Kälin and Kochenov's Quality of Nationality Index (QNI) ranks the objective value of all nationalities as legal statuses of attachment to states. Using a wide variety of strictly quantifiable data to gauge the opportunities presented and limitations imposed by nationalities on their holders, the QNI provides a comprehensive ranking of the intrinsic quality of each citizenship status in the world. Both the internal value (economic opportunities, human development and peace and stability) and the external value (including the number and quality of visa-free travel and, crucially, settlement destinations) of all the nationalities in the world are measured, only to reveal the reality that the quality of nationalities is not correlated with the prestige of the issuing states. The full dataset of the index is available on Mendeley.
The QNI is an invaluable tool to illustrate the huge discrepancies in the value of the nationalities of the world: showcasing first-hand the unequal distribution of rights and opportunities which different nationalities bring to their holders.
German Law Journal, 2020
In response to the BVerfG's PSPP judgment, the CJEU issued an unprecedented press release in whic... more In response to the BVerfG's PSPP judgment, the CJEU issued an unprecedented press release in which it claimed that national courts must give full effect to EU law because this is the only way to ensure the equality of the Member States. While the press release does not contain the word "primacy," the obligation to give full effect to EU law clearly implies primacy of EU law. This article provides a constructive and critical analysis of the press release's "equality argument." First, it demonstrates how the CJEU most likely borrowed it from a recent article by Federico Fabbrini, and how the argument is virtually identical to Kelsen's defense of international law primacy. Second, it criticizes the equality argument for being inconsistent with the CJEU's case law, and shows how it is either wrong or tautological. After suggesting three possible reasons why the press release nonetheless justifies primacy in this way, the article concludes by showing how the CJEU's case law is better conceptualized from a Hamiltonian perspective in which full effect is a goal rather than a means.
This is a draft version. For the final version of this article, please consult the Yearbook of European Law, volume 38, pp. 18-72 (2019)., 2019
The main aim of this paper is to cast light on the case law on direct effect of directives, which... more The main aim of this paper is to cast light on the case law on direct effect of directives, which has remained elusive to both scholars and practitioners. To this end, we first revisit the relevant case law on inverse vertical, horizontal. and triangular disputes to show that the fundamental distinction drawn by the case law is that between ‘direct obligations’ and ‘mere adverse repercussions’. Subsequently, we propose a doctrinal approach to distinguish between ‘direct obligations’ and ‘mere adverse repercussions’ which centres on the impact of invoking a European Union (EU) directive on the norms governing the dispute. This ‘normative impact theory’ explains all existing case law on the direct effect of directives, and thus aids a better understanding of the concept of imposing obligations on individuals. We compare this theory with other doctrinal theories that have purported to explain the case law, including the well-known distinction between invocabilité de substitution and invocabilité d’exclusion, concluding that the normative impact theory has descriptive and normative advantages over existing approaches. Lastly, we show how the functioning of the preliminary reference procedure has affected the development of the case law on direct effect. We demonstrate that the European Court of Justice (ECJ) applies a presumption that consistent interpretation is capable of remedying incompatibilities between national and EU law. Secondly, we show how the formulation of the preliminary reference can substantially affect, and even confuse, the answer of the ECJ as regards matters of direct effect.
Oxford Journal of Legal Studies, 2018
This article explores the conception of law that underlies the CJEU’s case-law, building on Opini... more This article explores the conception of law that underlies the CJEU’s case-law, building on Opinion 2/13 on EU accession to the ECHR as a topical example. Joxerramon Bengoetxea’s metaphor of the CJEU being a ‘Dworkinian court’ fails to explain fundamental aspects of the Court’s case-law which are incompatible with Dworkin’s theory of law. Instead, the CJEU is committed to an EU legal system which conforms to Joseph Raz’s theory of the necessary conditions for legal systems: comprehensiveness, openness, and a claim of supremacy. Within this paradigm, the supremacy claim of EU law is in need of demystification because it is inherent to any legal system. Paradoxically, while Opinion 2/13 suggests that the EU should be given special treatment in its accession to the ECHR, the Court’s underlying conception of the EU legal system is essentially mimetic of the typical characteristics of national legal systems. This mimetic nature of the EU legal system entails a dissociation between the political and the legal nature of the EU: while the EU is certainly not a state, its legal system is no different from national legal systems.
This is a longer draft version of a review article. For the final version of this article, please see (2019) 82 Modern Law Review 1157., 2019
Courts, no doubt, can get moral answers wrong, but can they also get morality itself wrong? This ... more Courts, no doubt, can get moral answers wrong, but can they also get morality itself wrong? This is the ambitious question asked by Boško Tripković in The Metaethics of Constitutional Adjudication. This book aims to elucidate the use of ethical or moral arguments in constitutional reasoning by searching for their metaethical foundations. The first part identifies and analyses three common ethical reasoning ideal-types from a comparative constitutional perspective. These ideal-types are argument from constitutional identity (Chapter 2), common sentiment (Chapter 3) and universal reason (Chapter 4). In individual judgments where such types of ethical argument are used, they are often construed as self-standing methods of ethical argument, as this book demonstrates with reference to constitutional adjudication in several jurisdictions, including the United States, South Africa and Israel. Subsequently, Tripković attempts to show how all three ideal-types nonetheless lack a credible metaethical foundation. In the second part, Tripković develops his own metaethical theory, drawing particularly from evolutionary ethics. This theory is based on the contingency of our ethical beliefs, and locates the metaethical foundation of value in the interaction between confidence in our firmly held beliefs and our critical reflection upon them (Chapter 5). The final chapter applies this metaethical theory to constitutional adjudication to show how confidence and reflection can serve as a basis of a theory of constitutional ethics (Chapter 6). In this review article, I first situate the book in the current literature, showing how it makes a valuable and insightful contribution to the discussion on the relationship between law, morality and constitutionalism. To grasp the metaethical arguments used in the book better, I then briefly discuss the relationship between the concepts of ‘moral realism’, ‘mind-independency’ and ‘objectivity’. Thirdly, I review the three ideal-types of ethical argument discussed by Tripković, offering some thoughts on his analysis. Lastly, I discuss the book’s metaethical claims and how the central notions of confidence and reflection apply in the context of constitutional ethics.
This is a longer draft version of a chapter in The Internal Market and the Future of European Integration: Essays in Honour of Laurence W. Gormley (Fabian Amtenbrink, Gareth Davies, Dimitry Kochenov and Justin Lindeboom (eds.), Cambridge University Press 2019)., 2020
At the occasion of honouring the career of prof. Laurence W. Gormley - celebrated mentor and frie... more At the occasion of honouring the career of prof. Laurence W. Gormley - celebrated mentor and friend - this chapter asks one simple question: what does it mean to interpret the free movement of goods, persons, services or capital under EU law reasonably? Reasonableness takes centre stage – both explicitly and implicitly – in the European Court of Justice (ECJ)’s jurisprudence on the four freedoms of the EU internal market. For all doctrinal attempts to find a grand unified theory of EU internal market law, deducing ever more principles from the expanding body of case law, the ECJ has never succumbed to calls for settling these questions once and for all, stoically persisting in pragmatism and judicial minimalism. Taking a bird’s eye perspective, perhaps the case law can be roughly summarised as follows. First, reasonable measures of the Member States are compatible with EU internal market law. Second, direct and indirect discrimination is usually unreasonable. Third, truly non-discriminatory barriers to free movement are usually reasonable, but sometimes they are not. Fourth, what is ‘reasonable’ and ‘unreasonable’ is ultimately for the Court to decide. If reasonableness is central to EU internal market law, the Court’s seminal Dassonville judgment seems to contain right about everything one needs to know. However, since reasonableness is in the eye of the beholder, and it is unclear what a ‘reasonable’ approach to the legal rules entails, the guiding function of EU law would benefit from some further clarification. At the same time, the EU legal system’s relative youth entails that the substantive content of EU law is at an early stage of development, and the meaning of autonomous EU concepts is only developing as appropriate cases arise. Consequently, it is up to the ECJ to exercise good judgement in individual judgments. Four possible sources of reasonableness are identified: the notion of ‘regulatory autonomy’ (II), the definition of a trade barrier (III), the burden and standard of proof (IV) and the notion of ‘holistic interpretation’ (V).
Books by Justin Lindeboom
This collection marks the rich legacy of Professor Laurence W. Gormley's scholarship in the field... more This collection marks the rich legacy of Professor Laurence W. Gormley's scholarship in the field of EU internal market law, providing a definitive critical appraisal of all the key aspects of the internal market, with an emphasis on goods and judicial protection; Professor Gormley's expert fields. Forty chapters deal with constitutional aspects of the EU internal market, the free movement of goods, persons and services, EMU, public procurement and competition law, institutional and procedural dimensions, and the EU's external relations, which includes matters relating to Brexit. The broad theme of the book, reflecting the many interests of Professor Gormley, will appeal to scholars, students and practicing lawyers. Dealing with both classic, foundational aspects of the EU internal market as well as highly topical matters, such as Brexit, this book will be a most welcome addition to every engaged legal scholar's library, thereby celebrating the legacy of a mentor and dear friend.
Kälin and Kochenov's Quality of Nationality Index (QNI) ranks the objective value of all national... more Kälin and Kochenov's Quality of Nationality Index (QNI) ranks the objective value of all nationalities as legal statuses of attachment to states. Using a wide variety of strictly quantifiable data to gauge the opportunities presented and limitations imposed by nationalities on their holders, the QNI provides a comprehensive ranking of the intrinsic quality of each citizenship status in the world. Both the internal value (economic opportunities, human development and peace and stability) and the external value (including the number and quality of visa-free travel and, crucially, settlement destinations) of all the nationalities in the world are measured, only to reveal the reality that the quality of nationalities is not correlated with the prestige of the issuing states.
Beautifully produced, richly illustrated and accompanied by insightful expert commentary, the QNI is the seminal reference for the citizenship aficionados. It is also an invaluable tool to illustrate the huge discrepancies in the value of the nationalities of the world: showcasing first-hand the unequal distribution of rights and opportunities which different nationalities bring to their holders.
The full QNI dataset on which this work is based is available in open access on Mendeley: https://data.mendeley.com/datasets/53zr7cfyrs/2
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Papers by Justin Lindeboom
Given the starkly reduced FDI inflows after the 2008 financial crisis and the subsequent Euro crisis, we explore the design of investment migration programmes as another investment incentive in the toolkit of EU Member States, albeit targeted at individuals instead of companies. We hypothesize, firstly, that investment migration programmes have flourished as a result of a match between supply – i.e. the goods which Member States can offer through investment migration programmes – and demand for these goods especially on the part of new investors from third countries. Secondly, the production of supply has been incentivized by the recent great economic downturn which saw many EU Member States search for foreign capital inflow, while EU membership imposed constraints on them to incentivize FDI.
In section 2, we briefly revisit some of the major themes of the financial and economic crisis in Europe, and the Eurozone in particular, including FDI inflows, showing how EU membership constrains the options for the Member State’s attempts to attract foreign investment. In section 3, we show that European investment migration programmes may be regarded as an additional tool in the EU Member States’ toolkit to attract foreign capital. In section 4, we situate the proliferation of investment migration programmes in the context of the Euro crisis. Section 5 concludes.
The QNI is an invaluable tool to illustrate the huge discrepancies in the value of the nationalities of the world: showcasing first-hand the unequal distribution of rights and opportunities which different nationalities bring to their holders.
Books by Justin Lindeboom
Beautifully produced, richly illustrated and accompanied by insightful expert commentary, the QNI is the seminal reference for the citizenship aficionados. It is also an invaluable tool to illustrate the huge discrepancies in the value of the nationalities of the world: showcasing first-hand the unequal distribution of rights and opportunities which different nationalities bring to their holders.
The full QNI dataset on which this work is based is available in open access on Mendeley: https://data.mendeley.com/datasets/53zr7cfyrs/2
Given the starkly reduced FDI inflows after the 2008 financial crisis and the subsequent Euro crisis, we explore the design of investment migration programmes as another investment incentive in the toolkit of EU Member States, albeit targeted at individuals instead of companies. We hypothesize, firstly, that investment migration programmes have flourished as a result of a match between supply – i.e. the goods which Member States can offer through investment migration programmes – and demand for these goods especially on the part of new investors from third countries. Secondly, the production of supply has been incentivized by the recent great economic downturn which saw many EU Member States search for foreign capital inflow, while EU membership imposed constraints on them to incentivize FDI.
In section 2, we briefly revisit some of the major themes of the financial and economic crisis in Europe, and the Eurozone in particular, including FDI inflows, showing how EU membership constrains the options for the Member State’s attempts to attract foreign investment. In section 3, we show that European investment migration programmes may be regarded as an additional tool in the EU Member States’ toolkit to attract foreign capital. In section 4, we situate the proliferation of investment migration programmes in the context of the Euro crisis. Section 5 concludes.
The QNI is an invaluable tool to illustrate the huge discrepancies in the value of the nationalities of the world: showcasing first-hand the unequal distribution of rights and opportunities which different nationalities bring to their holders.
Beautifully produced, richly illustrated and accompanied by insightful expert commentary, the QNI is the seminal reference for the citizenship aficionados. It is also an invaluable tool to illustrate the huge discrepancies in the value of the nationalities of the world: showcasing first-hand the unequal distribution of rights and opportunities which different nationalities bring to their holders.
The full QNI dataset on which this work is based is available in open access on Mendeley: https://data.mendeley.com/datasets/53zr7cfyrs/2