"Precedent" and fundamental rights in the CJEU’s case law on family reunification immigration

De Somer, Marie and Maarten P. Vink

European Integration online Papers (EIoP), 2015, vol. 19

Abstract: This paper reviews the incidence of precedent-based practices in the Court of Justice of the European Union’s (CJEU) case law on family reunification immigration. Particular attention is paid to the use of fundamental rights considerations, and the extent to which they guide the Court’s judicial deliberations in this sovereignty-sensitive area of law. Our review of de facto ‘precedents’, and the extent to which they interact with fundamental rights-related concerns enables us to take stock of the long-term development of the Court’s judicial authority. This longitudinal exercise also enables us to transcend the traditional dichotomy of ‘the CJEU vis-à -vis the member states’ that typically characterizes academic discussions on the role of the Court in processes of EU integration. The paper first considers the relevance of reviewing precedent in the context of the EU legal order. Next, we provide a novel dataset of the CJEU’s jurisprudence in the area of family reunification immigration, as it evolved from 1974 up until today. We deal with the methodological implications of studying ‘precedent’ by presenting a model which numerically structures the incidence of precedent-based patterns. This numerical information allows us to organize our data for a subsequent qualitative in-depth analysis of those precedent-based patterns with the strongest discursive influence on the overall evolution of the case law. Our analysis demonstrates that fundamental rights-based arguments exerted a strong influence on the ideational course of the Court’s jurisprudence in this area, albeit in a non-linear manner.

Keywords: European Court of Justice; immigration policy; fundamental/human rights; judicial review; national autonomy; law; political science (search for similar items in EconPapers)
Date: 2015-01-19
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