Abstract
This chapter embeds the study’s first empirical step. By reviewing national governments’ interest-articulation during the drafting of EU family reunification provisions, the chapter maps Member States’ political preferences in this area of law. For these purposes, the drafting of family reunification clauses in both EU free movement law as well as in EU immigration law is considered. This first analysis provides an ex ante benchmark of dominant political preferences against which to assess, in the two subsequent stages, whether and how the Court was able to develop judicially autonomous decisions, that is, decisions that are independent from the identified preferences. By means of this ex ante benchmark, the analysis also seeks to gain leverage on the problem of observational equivalence that has hindered prior judicial politics’ analyses.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Regulation 1251/70/EEC on the right of workers to remain in the territory of a Member State after having been employed in that State, Directive 73/148/EEC on the free movement rights of self-employed persons and persons providing or receiving services, Directive 75/34/EEC on the right to remain after having pursued a self-employed activity, Directive 90/364/EEC on free movement rights for self-sufficient persons, Directive 90/365/EEC on free movement rights for pensioners, and Directive 93/96/EEC on free movement rights for students.
References
Primary Sources
EU Law
Council Directive 73/148/EEC on the Abolition of Restrictions on Movement and Residence within the Community for Nationals of Member States with regard to Establishment and the Provision of Services [1973] O.J. L 172/14.
Council Directive 75/34/EEC Concerning the Right of Nationals of a Member State to Remain in the Territory of Another Member State after having pursued therein an Activity in a Self-Employed Capacity [1975] O.J. L 14/10.
Council Directive 90/364/EEC on the Right of Residence [1990] O.J. L 180/26.
Council Directive 90/365/EEC on the Right of Residence for Employees and Self-Employed Persons who have ceased their Occupational Activity [1990] O.J. L 180/28.
Council Directive 93/96/EEC on the Right of Residence for Students [1993] O.J. L 317/59.
Council Directive 2003/86/EC on the Right to Family Reunification [2003] O.J. L 251/12.
Regulation (EEC) No 15/61 of the Council on Initial Measures to Bring About Free Movement of Workers within the Community [1961] O.J. 57/1073.
Regulation (EEC) No 38/64 of the Council on the Freedom of Movement for Workers within the Community [1964] O.J. 64/965.
Regulation (EEC) No 1612/68 of the Council on Freedom of Movement for Workers within the Community [1968] O.J. 257.
Regulation (EEC) No 1251/70 of the Commission on the Right of Workers to Remain in the Territory of a Member State after Having Been Employed in that State [1970] O.J. L 142/24.
EU Documents
Commission Proposal for a Council Act establishing the Convention on rules for the admission of third-country nationals to the Member States, COM (97) 387 (final).
Commission Proposal for a Council Directive on the right to family reunification immigration, COM (1999) 638 (final).
Commission Amended Proposal for a Council Directive on the right to family reunification immigration, COM (2000), 624 (final).
Commission Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM (2001) 257 (final).
Commission Amended Proposal for a Council Directive on the right to family reunification immigration, COM (2002) 225 (final).
Commission Amended Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM (2003) 199 (final).
Common Position (EC) No 6/2004 adopted by the Council on 5 December 2003 with a view to adopting Directive 2004/…/EC of the European Parliament and of the Council of … on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, O.J. C 54/E12.
Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification, COM (2014) 210 (final).
Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, SEC/2003/1293 (final).
Council of the European Union Outcome of Proceedings on the Commission proposal for a Convention on rules for the admission of third-country nationals, 6488/98 ADD 1.
Council of the European Union Outcome of Proceedings on the Commission proposal for a Convention on rules for the admission of third-country nationals, 6488/98 ADD 2.
Council of the European Union Outcome of Proceedings on the Proposal for a Council Directive on the right to Family Reunification, 6504/00.
Council of the European Union Note on the Proposal for a Council Directive on Family Reunification, 9738/00.
Council of the European Union Outcome of Proceedings on the Proposal for a Council Directive on Family Reunification, 11122/00.
Council of the European Union Outcome of Proceedings on the Proposal for a Council Directive on Family Reunification, 11524/00.
Council of the European Union Outcome of Proceedings on the Amended Proposal for a Council Directive on the right to Family Reunification, 7144/01.
Council of the European Union Note from the Presidency on the Proposal for a Council Directive on the right to Family Reunification, 7145/01.
Council of the European Union Outcome of Proceedings on the Proposal for a Council Directive on the right to Family Reunification, 7612/01.
Council of the European Union Introductory Note from the Council Secretariat on the Amended Proposal for a Council Directive on the right to Family Reunification, 8491/01.
Council of the European Union Outcome of Proceedings on the Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 1057/02.
Council of the European Union Outcome of Proceedings on the Amended Proposal for a Council Directive on the right to family reunification, 10857/02.
Council of the European Union Outcome of Proceedings on the Amended Proposal for a Council Directive on the right to family reunification, 11787/02.
Council of the European Union Outcome of Proceedings on the Amended Proposal for a Council Directive on the right to family reunification, 13053/02.
Council of the European Union Outcome of Proceedings on the Amended Proposal for a Council Directive on the right to family reunification, 13968/02.
Council of the European Union Note from the Presidency on the Examination of Key Issues of the Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 13298/02.
Council of the European Union Progress Report on the Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 13942/02.
Council of the European Union Outcome of Proceedings on the Amended Proposal for a Council Directive on the right to family reunification, 14272/02.
Council of the European Union Outcome of Proceedings on the Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 6147/03.
Council of the European Union Note from the Presidency on the Amended Proposal for a Council Directive on the right to family reunification, 6585/03.
Council of the European Union Draft Minutes of the 2489th meeting of the Council of the European Union Justice, Home Affairs and Civil Protection held in Brussels on 27/28 February 2003, 6906/03.
Council of the European Union Note from the General Secretariat of the Council on the Council Directive on the right to family reunification, 6912/03.
Council of the European Union Progress Report on the Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 8675/03.
Council of the European Union Note from the Presidency on the Political Agreement on the Amended Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 12218/03.
Council of the European Union Note from the Presidency on Political Agreement on the Amended Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 12585/03.
Council of the European Union Draft Statement of the Council’s Reasons on the Common Position adopted by the Council with a view to the adoption of a Directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 13263/03.
Council of the European Union Press Release 1962nd Council meeting Justice and Home Affairs, Brussels 21 September 2009, 13467/09.
European Parliament Legislative Resolution on the proposal for a Council Directive on the right to family reunification immigration, A5-0201/2000.
European Parliament Report on the Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, A5-0009/2003.
European Parliament Report on the amended proposal for a Council Directive on the right to family reunification immigration, A5-0086/2003.
European Parliament Legislative Resolution on the Council Common Position with a View to the Adoption of a Directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, P5_TA(2004)0160.
Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC), COM (2011) 735 (final).
Laeken European Council, Conclusions of the Presidency [2001] EU Bulletin 17.12.2001.
Report from the Commission to the European Parliament and the Council on the application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM (2008) 840 final.
Tampere European Council, Conclusions of the Presidency [1999] EU Bulletin No. 10/1999.
Literature
Barnard, C., & Odudu, O. (2009). The Outer Limits of European Union Law. Portland, OR: Hart Publishing.
Bernard, N. (1996). Discrimination and Free Movement in EC Law. International and Comparative Law Quarterly, 45(1), 82–108.
Bonjour, S., & Vink, M. (2013). When Europeanization Backfires: The Normalization of European Migration Politics. Acta Politica, 48(4), 389–407.
Burley, A.-M., & Mattli, W. (1993). Europe before the Court: A Political Theory of Legal Integration. International Organization, 47(1), 41–76.
Carruba, C. (2005). Courts and Compliance in International Regulatory Regimes. The Journal of Politics, 67(3), 669–689.
Carruba, C., Gabel, M., & Hankla, C. (2008). Judicial Behavior under Political Constraints: Evidence from the European Court of Justice. American Political Science Review, 102(4), 435–452.
Carruba, J., Gabel, M., & Hankla, C. (2012). Understanding the Role of the European Court of Justice in European Integration. American Political Science Review, 106(1), 214–223.
Cichowski, R. (1998). Integrating the Environment. Journal of European Public Policy, 5(3), 387–405.
Cichowski, R. (2004). Women’s Rights, the European Court, and Supranational Constitutionalism. Law & Society Review, 38(3), 489–512.
Cichowski, R. (2007). The European Court and Civil Society: Litigation, Mobilization and Governance. Cambridge: Cambridge University Press.
Garrett, G. (1992). International Cooperation and Institutional Choice: The European Community’s Internal Market. International Organization, 46(2), 533–560.
Garrett, G., & Weingast, B. (1993). Ideas, Interests and Institutions: Constructing the European Community’s Internal Market. In J. Goldstein & R. Keohane (Eds.), Ideas and Foreign Policy: Beliefs, Institutions, and Political Change (pp. 173–206). Ithaca, NY: Cornell University Press.
Goedings, S. (2006). Labor Migration in an Integrating Europe. National Migration Policies and the Free Movement of Workers, 1950–1968. Den Haag: Sdu Uitgevers.
Granger, M.-P. (2004). When Governments Go to Luxembourg…: The Influence of Governments on the Court of Justice. European Law Review, 29(1), 3–31.
Groenendijk, K. (2011). Pre-departure Integration Strategies in the European Union: Integration or Immigration Policy? European Journal of Migration and Law, 13, 1–30.
Guild, E., & Niessen, J. (1996). The Developing Immigration and Asylum Policies of the European Union. Adopted Conventions, Resolutions, Recommendations, Decisions and Conclusions. The Hague: Kluwer Law International.
Guild, E., Peers, S., & Tomkin, J. (2014). The EU Citizenship Directive: A Commentary. Oxford: Oxford University Press.
Hanf, D. (2011). ‘Reverse Discrimination’ in EU Law: Constitutional Aberration, Constitutional Necessity, or Judicial Choice? Maastricht Journal of European and Comparative Law, 18, 29–61.
Hedemann-Robinson, M. (1996). Third-Country Nationals, European Union Citizenship and Free Movement of Persons: A Time for Bridges Rather than Divisions. Yearbook of European Law, 16(1), 321–362.
Hedemann-Robinson, M. (1998). From Object to Subject?: Non-EC Nationals and the Draft Proposal of the Commission for a Council Act Establishing the Rules for the Admission of Third Country Nationals to the Member States. Yearbook of European Law, 18(1), 289–335.
Labayle, H., & De Bruycker, P. (2012). Impact de la jurisprudence de la CEJ et la CEDH en matière d’asile et d’immigration. Étude Parlement Européen, DG des Politiques Internes.
McCown, M. (2003). The European Parliament before the Bench: ECJ Precedent and EP Litigation Strategies. Journal of European Public Policy, 10(6), 974–995.
Menz, G. (2011). Stopping, Shaping and Moulding Europe: Two-Level Games, Non-State Actors and the Europeanization of Migration Policies. Journal of Common Market Studies, 49(2), 437–462.
Peers, S. (1998). Building Fortress Europe: The Development of EU Migration Law. Common Market Law Review, 35, 1235–1272.
Peers, S. (2011). EU Justice and Home Affairs Law. Oxford: Oxford University Press.
Peers, S., & Rogers, N. (2006). EU Immigration and Asylum Law: Text and Commentary. Leiden: Martinus Nijhoff Publishers.
Shuibhne, N. (2010). The Resilience of EU Market Citizenship. Common Market Law Review, 47(6), 1597–1628.
Stein, E. (1981). Lawyers, Judges, and the Making of a Transnational Constitution. American Journal of International Law, 75(1), 1–27.
Stone Sweet, A., & Brunell, T. (2012). The European Court of Justice, State Noncompliance, and the Politics of Override. American Political Science Review., 106(1), 204–213.
Strik, T. (2011). Besluitvorming over asiel- en migratierichtlijnen. De wisselwerking tussen nationaal en Europees niveau. Den Haag: Boom Juridische uitgevers.
Tryfonidou, A. (2008). Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe. Legal Issues of Economic Integration, 35(1), 43–67.
Van Elsuwege, P., & Kochenov, D. (2011). On the Limits of Judicial Intervention: EU Citizenship and Family Reunification Rights. European Journal of Migration and Law, 13(4), 443–466.
Walter, A. (2008). Reverse Discrimination and Family Reunification. Nijmegen: Wolf Legal Publishers.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2019 The Author(s)
About this chapter
Cite this chapter
De Somer, M. (2019). Identifying Member States’ Interests. In: Precedents and Judicial Politics in EU Immigration Law. European Administrative Governance. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-93982-7_5
Download citation
DOI: https://doi.org/10.1007/978-3-319-93982-7_5
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-319-93981-0
Online ISBN: 978-3-319-93982-7
eBook Packages: Political Science and International StudiesPolitical Science and International Studies (R0)