Constitutional Choices of EU Migration Law

by Anna Kocharov

Book presented for the degree of the Doctor of Laws at the European University Institute

Constitutions establish communities. This essay explores how a European political community can be advanced through EU constitutional law. It is shown that legitimacy of the Union derives from three conceptions of Peace manifest in EU free movement law, external agreements of the Union and migration law under the AFSJ. The constitutional role of the Union is to ensure Peace by addressing two types of conflict. The first are static conflicts of interests between the national polities in the EU. These are avoided by ensuring reciprocal non-interference between Member States in the Union through deregulation in Union law. The second are dynamic conflicts of ideas about positive liberty held by the peoples of Europe that can be resolved through regulation in a European political space. Here, Union law enables a continuous process of re-negotiating a shared European idea of positive liberty that can be accepted as own by each national polity in the EU. These solutions to the two types of conflicts correspond to the liberal and republican models for Europe. Both are premised on liberty from domination of each national polity from which legitimacy of the Union and the European political space ensue. Substantive law and constitutional theory, analysis of the legislative process and CJEU case law, insights from psychology and philosophy are combined throughout this work to unveil how a stronger Union can be advanced through constitutional law.

This work in EU constitutional theory is interdisciplinary and comparative.

The theoretical framework it creates draws on philosophy and psychology, theories of transnational legal systems, theories of European integration and constitutionalism. Comparative analysis of substantive law and case law across three different constitutional areas of Union law is used to identify and trace the evolution of constitutive elements of EU legal order. These elements are inserted into the theoretical framework to construe a holistic constitutional theory of EU law.

The policy area chosen for the comparative analysis of substantive law – migration, understood broadly to include all provisions that regulate mobility of people to and from Member States of the EU – is unique in two respects. First, migration is a constitutionally diverse policy. It is a politically contested policy characterized by high heterogeneity of interests and ideas. The presence of two different types of conflict – conflicts of interests and conflicts of ideas – enables comparison between the constitutional solutions adopted in Union law for each. It is also a policy where substantive policy choice is made both in Treaty law by unanimity of Member States and in secondary EU law subject to qualified majority vote. Further, migration law can be enacted under exclusive or shared competences of the EU. These features enable comparisons through which constitutive elements of Union law emerge. Second, migration is the only policy that spans three constitutional areas of Union law: (1) the internal market, (2) external agreements of the EU, and (3) the area of freedom, security and justice. These unique features of EU migration policy allow mapping both the different types of conflict addressed in Union law (substantive policy choices) and the responses to them in the constitutive elements of Union law (constitutional choices that regulate the making of policy choice).

The holistic theory of Union law that emerges from from this interdisciplinary and comparative method allows space for both liberal and republican models of legitimation of the Union and its policies.

Outline:

Intruduction

1. Loyalty in the Constitutional Construction of Europe

2. A Union of Polities

3. A Political Union

4. Conflict in Union Law

5. The Court between Polities and Politics

Conclusion