Possibilities and constraints for achieving legal unity in the context of the European Union (EU) manifest themselves in multiple and illustrative ways in the development of cooperation between judges in EU Member States. For example, recent discussions on judicial independence in Hungary and Poland underline that we are still quite far removed from the realisation of a shared European normative basis for judicial functioning, that is: a shared ‘judicial culture’. These discussions simultaneously emphasise the importance of such a basis for the realisation of the ideal of the ‘rule of law’. As a stepping stone for future interdisciplinary legal research, this article provides a theoretical analysis of the concept of ‘judicial culture’ and three of its core dimensions (ethical, legal, institutional), which has not been available in legal scholarship so far. Our analysis demonstrates that by carefully establishing in which types of sources we can locate the respective dimensions, and by designing a methodology for analysing these sources, scholars can analyse judicial cultures in a more in-depth and systematic manner. In this way, specific conceptual ‘lenses’ become available for the collection of relevant information and empirical data, for the theoretical analysis and comparison of these results and eventually for a normative assessment of the possibility and desirability of convergence of judicial cultures. From this perspective, this analysis aims to contribute to further insight into questions on legal unity and its realisation in a context of diverging social pressures.
{"title":"The Framework for Judicial Cooperation in the European Union: Unpacking the Ethical, Legal and Institutional Dimensions of 'Judicial Culture'","authors":"E. Mak, N. Graaf, E. Jackson","doi":"10.5334/UJIEL.452","DOIUrl":"https://doi.org/10.5334/UJIEL.452","url":null,"abstract":"Possibilities and constraints for achieving legal unity in the context of the European Union (EU) manifest themselves in multiple and illustrative ways in the development of cooperation between judges in EU Member States. For example, recent discussions on judicial independence in Hungary and Poland underline that we are still quite far removed from the realisation of a shared European normative basis for judicial functioning, that is: a shared ‘judicial culture’. These discussions simultaneously emphasise the importance of such a basis for the realisation of the ideal of the ‘rule of law’. As a stepping stone for future interdisciplinary legal research, this article provides a theoretical analysis of the concept of ‘judicial culture’ and three of its core dimensions (ethical, legal, institutional), which has not been available in legal scholarship so far. Our analysis demonstrates that by carefully establishing in which types of sources we can locate the respective dimensions, and by designing a methodology for analysing these sources, scholars can analyse judicial cultures in a more in-depth and systematic manner. In this way, specific conceptual ‘lenses’ become available for the collection of relevant information and empirical data, for the theoretical analysis and comparison of these results and eventually for a normative assessment of the possibility and desirability of convergence of judicial cultures. From this perspective, this analysis aims to contribute to further insight into questions on legal unity and its realisation in a context of diverging social pressures.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43745047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article deals with an enduring challenge for the European Court of Justice: striking a balance between the EU market integration requirements and respecting the ‘fundamental structures’ that exist in the Member States through the recognition and accommodation of a range of regulatory options that may restrict trade. The challenge is finding unity in social diversity and many commentators consider that the Court has interpreted the constitutional foundation of the European Union as having turned market access rights into fundamental rights and social policy into an obstructive power that has to be limited. This article reflects on the adjudicative methods of the Court and revisits this debate. It argues that the Court has developed a proportionality assessment that is able to accommodate a plethora of Member State policy choices. Member States’ systems of protection need to be transparent, systematic and internally coherent. However, if these conditions are taken into account, then the level of protection and the means through which this level of protection is sought remain largely at the discretion of the Member States.
{"title":"Unity and Diversity in the European Union’s Internal Market Case Law: Towards Unity in ‘Good Governance’?","authors":"J. Mulder","doi":"10.5334/UJIEL.454","DOIUrl":"https://doi.org/10.5334/UJIEL.454","url":null,"abstract":"This article deals with an enduring challenge for the European Court of Justice: striking a balance between the EU market integration requirements and respecting the ‘fundamental structures’ that exist in the Member States through the recognition and accommodation of a range of regulatory options that may restrict trade. The challenge is finding unity in social diversity and many commentators consider that the Court has interpreted the constitutional foundation of the European Union as having turned market access rights into fundamental rights and social policy into an obstructive power that has to be limited. This article reflects on the adjudicative methods of the Court and revisits this debate. It argues that the Court has developed a proportionality assessment that is able to accommodate a plethora of Member State policy choices. Member States’ systems of protection need to be transparent, systematic and internally coherent. However, if these conditions are taken into account, then the level of protection and the means through which this level of protection is sought remain largely at the discretion of the Member States.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49626639","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this paper, I offer an analysis of the different understandings of ‘system’ in connection with the two main Western legal traditions. In the continental ‘civil law’ tradition, ‘system’ is used in relation to the substance of the law, whereas in the English ‘common law’ tradition ‘system’ is rather used in relation to the functioning of the law, in the sense of finding solutions to legal problems that are consistent with earlier ones. I explain these different uses from a historical point of view: in the civil law tradition the notion of system goes back to the exposition of substantive legal doctrine, which – under the influence of Stoic thought – was already developed by lawyers in the Roman Republic, and for the first time elevated to statute by the Byzantine Emperor Justinian, whereas in the common law tradition the Byzantine-Roman organisation was not taken over, and system rather connotes with the manner in which conflicts can be resolved on a case-by-case manner, and hence has come to refer to the machinery of law. These different meanings may pose a challenge where legal unity is sought between jurisdictions that belong to different traditions.
{"title":"On the Meaning of ‘System’ in the Common and Civil Law Traditions: Two Approaches to Legal Unity","authors":"R. Brouwer","doi":"10.5334/UJIEL.451","DOIUrl":"https://doi.org/10.5334/UJIEL.451","url":null,"abstract":"In this paper, I offer an analysis of the different understandings of ‘system’ in connection with the two main Western legal traditions. In the continental ‘civil law’ tradition, ‘system’ is used in relation to the substance of the law, whereas in the English ‘common law’ tradition ‘system’ is rather used in relation to the functioning of the law, in the sense of finding solutions to legal problems that are consistent with earlier ones. I explain these different uses from a historical point of view: in the civil law tradition the notion of system goes back to the exposition of substantive legal doctrine, which – under the influence of Stoic thought – was already developed by lawyers in the Roman Republic, and for the first time elevated to statute by the Byzantine Emperor Justinian, whereas in the common law tradition the Byzantine-Roman organisation was not taken over, and system rather connotes with the manner in which conflicts can be resolved on a case-by-case manner, and hence has come to refer to the machinery of law. These different meanings may pose a challenge where legal unity is sought between jurisdictions that belong to different traditions.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49238076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Transnational Legal Unity Under Pressure: A Contextual Analysis of the European Union","authors":"E. Mak","doi":"10.5334/UJIEL.469","DOIUrl":"https://doi.org/10.5334/UJIEL.469","url":null,"abstract":"","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2018-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48248785","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In spite of some early judicial, political and scholarly discussions, as well as more recent scientific explorations of the topic, problems and concerns with proving discrimination in individual capital cases continue to be among the most debatable issues in human rights and criminal justice. In general, domestic courts (in particular US courts) seem to remain relatively perfunctory and hostile to individual discrimination challenges in capital trials. They normally require capital defendants alleging discrimination to prove something which is virtually impossible to prove. On the other hand, numerous capital defence attorneys, legal commentators and even some of the trial judges themselves lay strictures on the existing judicial approach which almost routinely rejects discrimination claims in capital cases. They contend that appropriate modifications in current legislative arrangements and mechanical adjudication policy and practice are urgent and indispensable for more equitable resolutions and for a truly even-handed criminal justice system. In particular, there are concerns regarding the adequate distribution of the burden of proof between the litigants. Moreover, no clear or uniform approach to this conundrum can be identified in the international jurisprudence. This article seeks to provide some definite answers to open and conceptual questions posed in an attempt to legally define ‘the minimum core content’ of the evidentiary standard – as implicitly contained in the relevant international human rights treaties’ provisions – to be applied in capital sentencing discrimination cases. Additionally, part of this same standard of proof can also qualify as a general principle of international law, particularly in relation to impartial, unbiased and non-discriminatory approaches and decision-making by the judges and jurors involved in complex capital cases.
{"title":"Proving Unlawful Discrimination in Capital Cases: In Quest of an Adequate Standard of Proof","authors":"Gregor Maučec","doi":"10.5334/UJIEL.356","DOIUrl":"https://doi.org/10.5334/UJIEL.356","url":null,"abstract":"In spite of some early judicial, political and scholarly discussions, as well as more recent scientific explorations of the topic, problems and concerns with proving discrimination in individual capital cases continue to be among the most debatable issues in human rights and criminal justice. In general, domestic courts (in particular US courts) seem to remain relatively perfunctory and hostile to individual discrimination challenges in capital trials. They normally require capital defendants alleging discrimination to prove something which is virtually impossible to prove. On the other hand, numerous capital defence attorneys, legal commentators and even some of the trial judges themselves lay strictures on the existing judicial approach which almost routinely rejects discrimination claims in capital cases. They contend that appropriate modifications in current legislative arrangements and mechanical adjudication policy and practice are urgent and indispensable for more equitable resolutions and for a truly even-handed criminal justice system. In particular, there are concerns regarding the adequate distribution of the burden of proof between the litigants. Moreover, no clear or uniform approach to this conundrum can be identified in the international jurisprudence. This article seeks to provide some definite answers to open and conceptual questions posed in an attempt to legally define ‘the minimum core content’ of the evidentiary standard – as implicitly contained in the relevant international human rights treaties’ provisions – to be applied in capital sentencing discrimination cases. Additionally, part of this same standard of proof can also qualify as a general principle of international law, particularly in relation to impartial, unbiased and non-discriminatory approaches and decision-making by the judges and jurors involved in complex capital cases.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2017-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45044050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Keywords: death penalty; capital cases; discrimination litigation; standard of proof; fair trial and equality protection; postconflict justice and transition; Islamic law; Shari’a; international humanitarian law; international human rights law; extremism, political violence, Islamism; freedom of expression; terrorism, extremism, counter-terrorism, counter-extremism; Article 19 International Covenant on Civil and Political Rights; Abuse of rights; Directive 2004/38; Court of Justice of the European Union; Marshall Islands Cases; ICJ; Electronic waste; sustainable development; WTO, GATT, TBT Agreement
{"title":"The Fusion of International and Domestic Law in a Globalised World","authors":"Karolina Aksamitowska","doi":"10.5334/UJIEL.438","DOIUrl":"https://doi.org/10.5334/UJIEL.438","url":null,"abstract":"Keywords: death penalty; capital cases; discrimination litigation; standard of proof; fair trial and equality protection; postconflict justice and transition; Islamic law; Shari’a; international humanitarian law; international human rights law; extremism, political violence, Islamism; freedom of expression; terrorism, extremism, counter-terrorism, counter-extremism; Article 19 International Covenant on Civil and Political Rights; Abuse of rights; Directive 2004/38; Court of Justice of the European Union; Marshall Islands Cases; ICJ; Electronic waste; sustainable development; WTO, GATT, TBT Agreement","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2017-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42462226","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International trade in used electrical and electronics equipment (UEEE) provides an avenue for socio-economic development in the developing world and also serves as a conduit for transboundary dumping of waste electrical and electronic equipment (WEEE) also referred to as electronic waste or e-waste. The latter problem arises from the absence of a regulatory framework for differentiating between functional UEEE and junk e-waste. This has resulted in both functional UEEE and junk e-waste being concurrently shipped to developing countries under the guise of international trade in used electronics. Dealing with these problems will require effective regulation of international trade in UEEE from both exporting and importing countries. Although, the export of e-waste from the European Community to developing countries is currently prohibited, significant amount of e-waste from the region continue to flow into developing countries due to lax regulatory measures in the latter. Hence, there is need for a regulatory regime in developing countries to complement the prohibitory regime in the major e-waste source countries. This paper proposes trade measures modelled in line with WTO rules which could be adopted by developing countries in addressing these problems. The proposed measures include the development of a compulsory certification and labelling system for functional UEEE as well as trade ban on commercial importation of UEEE not complying with the said certification and labelling system. The paper then goes further to examine these proposed measures in the light of WTO rules and jurisprudence.
{"title":"Trade Measures for Regulating Transboundary Movement of Electronic Waste","authors":"Gideon Emcee Christian","doi":"10.5334/UJIEL.435","DOIUrl":"https://doi.org/10.5334/UJIEL.435","url":null,"abstract":"International trade in used electrical and electronics equipment (UEEE) provides an avenue for socio-economic development in the developing world and also serves as a conduit for transboundary dumping of waste electrical and electronic equipment (WEEE) also referred to as electronic waste or e-waste. The latter problem arises from the absence of a regulatory framework for differentiating between functional UEEE and junk e-waste. This has resulted in both functional UEEE and junk e-waste being concurrently shipped to developing countries under the guise of international trade in used electronics. Dealing with these problems will require effective regulation of international trade in UEEE from both exporting and importing countries. Although, the export of e-waste from the European Community to developing countries is currently prohibited, significant amount of e-waste from the region continue to flow into developing countries due to lax regulatory measures in the latter. Hence, there is need for a regulatory regime in developing countries to complement the prohibitory regime in the major e-waste source countries. This paper proposes trade measures modelled in line with WTO rules which could be adopted by developing countries in addressing these problems. The proposed measures include the development of a compulsory certification and labelling system for functional UEEE as well as trade ban on commercial importation of UEEE not complying with the said certification and labelling system. The paper then goes further to examine these proposed measures in the light of WTO rules and jurisprudence.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2017-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48154007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Nuclear disarmament falls within the purview of the purposes envisaged in Article 1 of the United Nations Charter. The International Court of Justice (ICJ) in 1996 delivered an advisory opinion on legality of use of nuclear weapons and has stated that the states in good faith must strive towards nuclear disarmament. In the Marshall Islands Cases, 20 years later the ICJ had the opportunity to address questions relating to cessation of the nuclear arms race and nuclear disarmament. However, the ICJ has failed to foster nuclear disarmament within the international community. The ICJ dismissed Marshall Islands’ application on jurisdictional grounds because there was no legal dispute between the parties. The ICJ in determining the existence of a dispute introduced a subjective awareness test. In this case note, we aim to examine the awareness test and its politico-legal effects in the development of international law. While doing so, we also argue that the test has further rendered the enforcement of nuclear disarmament obligations arduous.
{"title":"The Nuclear Disarmament Cases: Is Formalistic Rigour in Establishing Jurisdiction Impeding Access to Justice?","authors":"Meenakshi Ramkumar, A. Singh","doi":"10.5334/UJIEL.422","DOIUrl":"https://doi.org/10.5334/UJIEL.422","url":null,"abstract":"Nuclear disarmament falls within the purview of the purposes envisaged in Article 1 of the United Nations Charter. The International Court of Justice (ICJ) in 1996 delivered an advisory opinion on legality of use of nuclear weapons and has stated that the states in good faith must strive towards nuclear disarmament. In the Marshall Islands Cases, 20 years later the ICJ had the opportunity to address questions relating to cessation of the nuclear arms race and nuclear disarmament. However, the ICJ has failed to foster nuclear disarmament within the international community. The ICJ dismissed Marshall Islands’ application on jurisdictional grounds because there was no legal dispute between the parties. The ICJ in determining the existence of a dispute introduced a subjective awareness test. In this case note, we aim to examine the awareness test and its politico-legal effects in the development of international law. While doing so, we also argue that the test has further rendered the enforcement of nuclear disarmament obligations arduous.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2017-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46322105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay is one of the first collaborative efforts to identify the underlying norms embedded in diverse traditions of Islamic law as these apply to contemporary Muslim communities experiencing conflict or transitioning from conflict. This long overdue endeavor draws upon comparative legal analyses, postconflict justice traditions, global governance, and empirical conflict studies to explore why Islamic legal norms are not often used as a resource for restraint and guidance in contemporary conflict settings. In exploring this puzzle, the authors make the case for strengthening commensurate Islamic and international conflict norms for complex conflicts and postconflict tradition. We also situate Islamic postconflict justice norms—which are too often confined to religious and natural law discussions—into contemporary problems of security policy, conflict prevention, and problems of governance. We indicate the many benefits of such a comparative approach for citizens of diverse Muslim and Arabs states and communities, trying to build pathways out of conflict, and for humanitarian and human rights practitioners working in such arenas toward similar goals. An additional, important benefit in excavating such shari’a norms is in providing the intellectual basis to counter politicized, extremist, and instrumentalist uses of Islamic law to justify extreme uses of political violence across the Middle East, Central and South Asian, and African regions.
{"title":"Justice in Post-Conflict Settings: Islamic Law and Muslim Communities as Stakeholders in Transition","authors":"Corri Zoli, M. Bassiouni, H. Khan","doi":"10.5334/UJIEL.382","DOIUrl":"https://doi.org/10.5334/UJIEL.382","url":null,"abstract":"This essay is one of the first collaborative efforts to identify the underlying norms embedded in diverse traditions of Islamic law as these apply to contemporary Muslim communities experiencing conflict or transitioning from conflict. This long overdue endeavor draws upon comparative legal analyses, postconflict justice traditions, global governance, and empirical conflict studies to explore why Islamic legal norms are not often used as a resource for restraint and guidance in contemporary conflict settings. In exploring this puzzle, the authors make the case for strengthening commensurate Islamic and international conflict norms for complex conflicts and postconflict tradition. We also situate Islamic postconflict justice norms—which are too often confined to religious and natural law discussions—into contemporary problems of security policy, conflict prevention, and problems of governance. We indicate the many benefits of such a comparative approach for citizens of diverse Muslim and Arabs states and communities, trying to build pathways out of conflict, and for humanitarian and human rights practitioners working in such arenas toward similar goals. An additional, important benefit in excavating such shari’a norms is in providing the intellectual basis to counter politicized, extremist, and instrumentalist uses of Islamic law to justify extreme uses of political violence across the Middle East, Central and South Asian, and African regions.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2017-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43779879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The free movement and residence of Union citizens and their third country national family members may be restricted under Article 35 of Directive 2004/38/EC on the grounds of abuse of rights. Although the Court of Justice of the European Union (CJEU) had the opportunity to address abuse of rights cases, so far there have been no cases where it has established that abuse of rights took place. For this reason, the legal literature has tended to downplay the significance of the abuse of rights exception. The analysis of national case law, however, demonstrates that the courts of the Member States do apply Article 35 in its implemented form and have established abuse of rights on several occasions. Moreover, national courts have decided legal questions related to the abuse of rights which were not answered previously by the CJEU.
{"title":"National Courts in the Frontline: Abuse of Rights under the Citizens’ Rights Directive","authors":"T. Szabados","doi":"10.5334/UJIEL.417","DOIUrl":"https://doi.org/10.5334/UJIEL.417","url":null,"abstract":"The free movement and residence of Union citizens and their third country national family members may be restricted under Article 35 of Directive 2004/38/EC on the grounds of abuse of rights. Although the Court of Justice of the European Union (CJEU) had the opportunity to address abuse of rights cases, so far there have been no cases where it has established that abuse of rights took place. For this reason, the legal literature has tended to downplay the significance of the abuse of rights exception. The analysis of national case law, however, demonstrates that the courts of the Member States do apply Article 35 in its implemented form and have established abuse of rights on several occasions. Moreover, national courts have decided legal questions related to the abuse of rights which were not answered previously by the CJEU.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2017-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48479552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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