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Title: Anchoring a subsidiarity and proportionality review by the Court of Justice of the European Union in the context of residency rights and shared competence: a legal, doctrinal and critical analysis
Authors: Shaw, Katherine
Advisors: Conway, G
Keywords: European law;Court of Justice;Competence
Issue Date: 2015
Publisher: Brunel University London.
Abstract: The thesis adopts a doctrinal approach to consider how a subsidiarity and proportionality review by the CJEU could be applied to shared competences, and the criteria that the CJEU should take into account in balancing competing interests when determining the residency rights of EU citizens. It will identify limits to the competences of the EU through subsidiarity analysis, including how this should constrain the reasoning of the CJEU, but this has a consequence of better legitimising such genuinely European standards that do have a clear legal basis. Adhering to the rule of law is an important issue for the CJEU to demonstrate its respect for as a core value commonly associated with democracy and with the validity of law itself. A subsidiarity review undertaken by the CJEU involving the CJEU checking whether the Union has competence to act (conferral) and in cases concerning areas of shared competence would also serve to legitimise the CJEU’s ruling to the Member States and address the problem of ultra vires EU action lacking legitimacy in the perspective of the Member States eyes. Adopting a normative approach it considers how a subsidiarity and proportionality review could be anchored in EU law to address competence issues when the CJEU is striking a balance between fundamental principles of EU law, the Charter of Fundamental Rights and the residency rights of migrant EU citizens who are economically inactive. As subsidiarity in these types of cases relates to the cross border requirement, the CJEU should be explicit about departing from the purely internal rule as well as explaining the substance of rights of EU citizens. The proportionality element of the review relates to the actual consideration and weighing up by the CJEU of the competing interests identified in this context. This requires the CJEU to identify explicitly in its reasoning any competing interests that have been weighed up as well as stating any other particular factors involved in the balancing and the weight accorded to those factors. Although such an approach would not necessarily result in a change in the outcome of the case, it would help to improve the quality of the reasoning of the CJEU and consequently enhance the legitimacy of the CJEU’s ruling.
Description: This thesis was submitted for the award of Doctor of Philosophy and was awarded by Brunel University London.
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Brunel Law School Theses

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