Date: 2014
Type: Thesis
EU free movement law and the powers retained by member states
Florence : European University Institute, 2014, EUI, LAW, PhD Thesis
BOUCON, Lena, EU free movement law and the powers retained by member states, Florence : European University Institute, 2014, EUI, LAW, PhD Thesis - https://hdl.handle.net/1814/34842
Retrieved from Cadmus, EUI Research Repository
The intention of my thesis is to shed light on a technique of integration implemented by the European Court of Justice described as 'power-based approach.' Frequently neglected and overlooked, it is distinct from the ECJ traditional rights-based approach. It materializes in a specific range of free movement cases where Member States are suspected of having impinging on the free movement principle – understood as encompassing the four economic freedoms and EU citizenship – when they exercise what the Court deems as being their retained powers. A variety of fields are concerned, such as nationality, direct taxation, social security, or education. My overall claim is that the power-based approach contributes to defining and shaping the contours of the relationship between the European Union and its Member States, of EU interstate relations and, ultimately, of Union membership. I start with an attempt at deconstruction to identify the defining features of the cases concerned by this approach: (i) they revolve around the structural notion of power; (ii) the applicability of the free movement principle stems from the disjunction of the scope of application of EU law from the scope of EU powers; (iii) the settlement of the conflicts at hand amounts to a 'mutual adjustment resolution,' which consists in putting limitations on the exercise of the powers retained by Member States, while the Court itself tends to soften its own approach to protect national autonomy. I then proceed with an effort at reconstruction. First, I identify the jurisdictional implications of the power-based approach. Next, I look into its implications for membership of the Union. Lastly, I provide an overall critical and structural reassessment. I show that the silence of the Court regarding the rationale behind its approach has the effect of weakening its legitimacy and its authority. I finally identify its resulting structural model.
Additional information:
Defence date: 12 December 2014; Examining Board: Professor Loïc Azoulai, European University Institute (Supervisor); Doctor Julio Baquero Cruz, European Commission; Professor Michael Dougan, Liverpool Law School; Professor Joseph H. H. Weiler, European University Institute.
Cadmus permanent link: https://hdl.handle.net/1814/34842
Full-text via DOI: 10.2870/082387
Series/Number: EUI; LAW; PhD Thesis
Publisher: European University Institute
LC Subject Heading: Freedom of movement -- European Union countries; Citizenship -- European Union countries; Law -- European Union countries; European Union countries -- Emigration and immigration