engleski

A Realist Account of European Union Citizenship

This thesis aims to identify and challenge the elements of legal formalism deeply embedded in academic, judicial and wider legal discourse on European Union law. Subjecting the EU legal culture to a realist critique, the main argument is how purely ‘legal’ narratives in EU law present a formalist façade that miscomprehends and denies indeterminacy inevitable in law and in adjudication. Specifically, the mainstream EU approach is characterised as ‘soft formalism’. Such a theoretical perspective, while recognizing occurrences of open texture of black-letter legal sources, still maintains that possible indeterminacies in law could and should be compensated for by constructive interpretation and resolved by employing proper methods of legal reasoning. Determinacy in law is thus achieved through determinacy in adjudication. In contrast, this thesis has developed a realist outlook to law tailored for the EU context, demonstrating how arguments based on law exclusively cannot resolve conclusively all indeterminacies in EU legal materials. Nor the rules of primary and secondary EU law, nor the general principles of EU law embedded in the Court’s perception of common constitutional ideals, can make the EU legal system complete and self-sustainable. The legal controversies stemming from the EU’s constitutional bargain simply cannot be accounted for without recourse to extra-legal elements and policy considerations pertained to individual disputes. To support the main argument, the thesis inquires into EU judicial methodologies – more particularly, the legal reasoning of the Court of Justice in the area of EU citizenship, conducting three distinct case-law studies concerning the EU citizens’ entitlements to 1) social welfare, 2) family reunification and, finally, 3) the Union’s spillover competence in matters of citizens’ civil status. Throughout the studies, the Union’s judge- made law proved not to be as separate from the related considerations of policy as the legal scholarship in Europe would feel comfortable admitting. The case law of the Court of Justice amounts to both lawmaking and policymaking by judiciary which far transgresses the ambivalent normative and textual foundations of EU citizenship within the Treaties. Only by perceiving such judicial developments of EU law as an interplay of both law and policy elements, and thus recognizing adjudication as a legitimate exercise of normative decisionmaking, could judge- made ‘law’ of the Court of Justice ever be truly accepted as a necessary ingredient of constitutional governance in the EU.

EU law, Court of Justice of the EU, legal formalism, legal realism, jurisprudence, legal positivism, constructive interpretation of law, methods of interpretation, general principles of EU law, legal reasoning, adjudication, judicial activism, rule of law, role of judiciary, EU citizenship, social benefits, family reunification, surname cases, same-sex marriage, EU fundamental rights, EU competences, federalism, constitutional pluralism

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