Dimitry Kochenov

Reinforcing Rule of Law Oversight in the European Union

This paper provides a critical overview of options available to the EU to deal with the Rule of Law crisis in some of the Member States. The options it engages with were offered and discussed by a handful of the leading experts in the field and drawing on the critical EUI discussion, the first part of the paper tackles the following questions:1. Why should the EU reinforce the oversight of Member States’ Rule of Law performance?2. Are there sufficient legal bases for such oversight – should a reform of the Treaties be required?3. What kind of procedure could be designed to meet the need of such oversight?4. Which body should be entrusted with the oversight function?The second part provides a word of caution warning of the possible problems related to the EUs involvement with the constitutional core of the Member States

On the Limits of Judicial Intervention: EU Citizenship and Family Reunification Rights

This article scrutinies the logic behind the recent judgments of the Court of Justice of the European Union (CJEU) in Ruiz Zambrano and McCarthy focusing on their implications for the right to family reunification under EU law. Specific attention is devoted to the phenomenon of reverse discrimination in the context of the new jurisdiction test established by the Court, which is based on the severity of the Member States’ interference with EU citizenship rights rather than on a pure cross-border logic. EU citizens unable to establish a link with EU law are often subject to stricter family reunification requirements in comparison to their migrant compatriots and even certain third country nationals. It is argued that this situation is difficult to accept in light of the principles of legal certainty, equality and the protection of fundamental rights. A new balance between EU citizenship and Member States’ regulatory autonomy is established but legislative action is required to solve the outstanding problems.

Monitoring and enforcement of the rule of law in the EU: rhetoric and reality

This article offers a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features. It is argued that while the Commission’s ‘light-touch’ framework falls short of what is required to effectively address internal threats to EU values of a systemic nature, it remains preferable to the new mechanism adopted by the Council in December 2014 and which consists of holding an annual rule of law dialogue among all Member States within the Council. To make the Commission’s framework more workable and effective, which should in turn increase its ‘dissuasive potential’, a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland.

Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link?

Making use of the European citizenship rights should not deprive EU citizens of the possibility of political participation at the Member State level. According to Article 19(1) EC, EU citizens may vote in municipal elections in their host Member State, not in the national elections. Consequently, EU citizens who benefited from the Article 18 EC right (or similar lex specialis rights) and moved to another Member State, effectively lose their right to participate in politics at the crucial Member State level if their Member State of nationality disallows expatriate voting, which is the case (de iure or de facto) in a number of Member States. This article assesses the legality of this situation in the light of Community Law. Building on the assumption that the Member States will be unwilling to change the Treaties to allow for full political participation of EU citizens at the national level in their Member States of residence, other possibilities to solve the outstanding problem are sought and analysed.

Better Late than Never? On the European Commission's Rule of Law Framework and its First Activation

This article first describes how the election of national governments intent on implementing ‘illiberal’ agendas has led the European Commission to adopt a new instrument known as the Rule of Law Framework. The mechanism’s potential effectiveness and the Commission’s reasoning to justify its activation against Poland, when it has failed to do so against Hungary, are subsequently analysed. It is argued that while the Commission should be commended for seeking to address increasing rule of law backsliding at the EU Member State level, it may also be criticised on five main grounds: its procrastination with respect to Hungary; its lack of consistency in the light of the reasoning used in the case of Poland; its misrepresentation of Article 7 TEU as a ‘nuclear option;’ its continuing failure to trigger Article 7(1) TEU against Hungary; and finally, its unwillingness to more forcefully apply the infringement procedure in a situation where a pattern of systemic breaches of EU values has clearly come to light, as has been the case in Hungary since 2011. More fundamentally, it is submitted that reliance on the Rule of Law Framework alone, if only because of its many shortcomings, will not remedy a situation where systemic violations of EU values form part of a governmental plan to set up an ‘illiberal’ regime.

EU Citizenship without Duties

Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims. (1) There are no empirically observable duties of EU citizenship; (2) such duties would lack any legal�?theoretical foundation, if the contrary were true; (3) legal�?theoretical foundations of the duties of citizenship are lacking also at the Member State level; (4) EU law plays an important role in undermining the ability of the Member States where residual duties remain to enforce them; (5) this development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de�?dutification of citizenship around the democratic world. If these conclusions are correct, it is time to stop categorising EU citizenship duties among the desiderata of EU law.

Double Nationality in the EU: An Argument for Tolerance

Currently the Member States’ nationalities, short of being abolished in the legal sense, mostly serve as access points to the status of EU citizenship. Besides, they provide their owners with a limited number of specific rights in deviation from the general principle of non-discrimination on the basis of nationality and – what is probably more important for the majority of their owners – trigger legalized discrimination in the wholly internal situations. Viewed in this light, the requirement to have only one Member State’s nationality enforced in national law by ten Member States seems totally outdated and misplaced. This paper focuses on the legal analysis of this controversial requirement. This paper, first presented at the bi-annual EUSA conference in Los Angeles in April 2009 is forthcoming in the European Law Journal in 2011.

Introduction: The Great Rule of Law Debate in the EU

Faced with what has been labeled ‘rule of law backsliding’ in some EU countries, EU institutions have sought to address the rise of ‘illiberal regimes’ via existing mechanisms as well as new instruments. This introductory contribution offers an overview of the problem and a brief summary of the papers to follow and which were first presented at a workshop co‐organized by the Bingham Centre for the Rule of Law and Middlesex University London. This article is part of the September 2016 Symposium titled ‘The Great Rule of Law Debate in the EU’, which also includes Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU by Amichai Magen (DOI:), Better Late than Never? On the European Commissions Rule of Law Framework and its First Activation by Dimitry Kochenov and Laurent Pech (DOI:), Strengthening the Rule of Law in the EU: The Councils Inaction by Peter Oliver and Justine Stefanelli (DOI:), The European Parliaments Role: Towards New Copenhagen Criteria for Existing Member States? by Judith Sargentini and Aleksejs Dimitrovs (DOI:), Upholding Shared Values in the EU: What Role for the EU Agency for Fundamental Rights? by Gabriel N. Toggenburg and Jonas Grimheden (DOI:)

Federalizing Legal Opportunities for LGBT Movements in the Growing EU

European Union (EU) citizenship is not only a unique space for ‘overcoming’ nationality, often imagined in terms of the dominant ethnicity of member states (Kochenov 2010a). EU citizenship equally offers an activist arena for challenging sexual identities and inequalities embedded in those national citizenships, transnationalizing discourse on rights and gay emancipation in Central and Eastern Europe as a matter of EU law. European, in this context, becomes a language of rights and entitlements, which can be turned, inter alia, against their own states of nationality. On the one hand, transnational forms of citizenship facilitate the very dialogue on sexual rights among member states and problematize the construction of fixed identities (Belavusau 2015a, in press). On the other hand, EU citizenship is equally a realm of disciplining humiliation of member states (Davies 2010). The rhetoric of ‘socially unfruitful’ homosexuality and the prescription of women’s reproductive role have been particularly visible in nationalist projects with ethno-centric views on group boundaries and longevity (Yuval-Davis 1997). The Union instead offers value models for anti-discrimination developments beyond the ‘population’ narrative of—largely patriarchal and heteronormative—national citizenships. Although not always legally enforceable due to the limited possibilities for harmonization and Union action, transnational and national lesbian, gay, bisexual, and transgender (LGBT) movements can capitalize on value models as a matter of EU federalism for lobbying just causes. The recent judgment of the US Supreme Court in Obergefell v. Hodges (2015) is an example of a federal opportunity for gays and lesbians—a legal track that sooner or later will be explored by the cause lawyers in Europe.

EU Citizenship and Federalism: The Role of Rights

Citation for published version: Nic Shuibhne, N 2017, Recasting EU citizenship as federal citizenship: What are the implications for the citizen when the polity bargain is privileged? in D Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights. Cambridge University Press, Cambridge, pp. 125-146. DOI: 20.500.11820/a54c6e9e-19a9-4a01b1d1-c787467e63ab, 10.1017/9781139680714, 10.1017/9781139680714.007