Judicial Europeanization through De-constitutionalization: The Case of the Analogous Application of the Citizenship Directive

The Court of Justice of the European Union (the Court) is often hailed as a pioneer in integration through law. Scholarly views, however, diverge on the extent to which the Court can leave its mark on domestic policymaking and under which conditions this occurs. Bourgeoning literature alluding to the de-constitutionalization of EU law in recent years, begs the question as to whether the Court can steer national migration policies through its case-law and embark on judicial Europeanization without strictly constitutionalizing policy outcomes. The article empirically examines the extent to which changes to the scope and substance of citizenship rights brought about through the analogous application of Directive 2004/38/EC (Citizenship Directive) triggered modifications in domestic migration policies. The article analyses all cases in which the Court applies the provisions of the Citizenship Directive by analogy to situations falling outside its strict scope, exploring the mechanics of the Court’s policy-making, and tracing the changes generated at domestic level. The findings illustrate that the creation of rights in a de-constitutionalized manner, through the analogous application of the Citizenship Directive, enables the Court to balance competing considerations and successfully generates judicial Europeanisation. The findings crucially reveal a high compliance rate in cases where this legal formula is applied even when Member States are opposed to the policy direction mandated by the judgment. The case of the United Kingdom provides an illustrative example of a Member State which despite actively opposing the Europeanization of migration, complied with the Lounes judgment by amending its national immigration laws, even in the aftermath of the Brexit referendum.