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ContentsIntroduction 1Introduction and Overview 1Competence, Conferral and the Principle of Subsidiarity 16Anchoring Subsidiarity and the cjeu 29Case Selection 40Conclusion 43Subsidiarity and Proportionality and the Balance of Power between the eu and the Member States 45Introduction 45Subsidiarity as a Legal Principle and Rule 46The Adoption of Subsidiarity as a Legal and Constitutional Principle by the eu to Limit Unnecessary eu Intervention 51Proportionality as a Widely Recognised Concept Used as a Test in Judicial Review 58Introduction 58Proportionality as a Widely Recognised Concept Used as a Test in Judicial Review 59Differing Interpretations of the Operationalization of Proportionality 65Differing Levels of Intensity of Judicial Review by the cjeu of National Restrictions 72Subsidiarity and Proportionality in eu Law-making in Shared Areas of Competence 82A Conceptual Link between Conferral, Subsidiarity and Proportionality 82Subsidiarity Alongside Proportionality in eu Law-making in Shared Areas of Competence 83eu Subsidiarity and Essentially Contested Concepts 89Subsidiarity and the Introduction of the Yellow Card Procedure Following the Treaty of Lisbon 99Conclusion 108Subsidiarity and Proportionality and the Role of the cjeu in Relation to Interpretation of Shared Competence 112Introduction 112Introducing the cjeu: A Unique Supranational Court 117The Pro-union Interpretative Tendency of the cjeu 126Subsidiarity and Judicial Review by the cjeu of Political Institutions 143Operationalising Subsidiarity and Proportionality Applied to Competences as Tool of Judicial Review 155Operationalising Subsidiarity in the Context of the Common Market 166Engaging the cjeu More Meaningfully with Subsidiarity in Its Legal Reasoning Outside of Judicial Review 173Conclusion 182The cjeu, Subsidiarity and Determining the Residency Rights of eu Citizens 186Introduction 186Theoretical Perspectives – The Concept of Citizenship and Its Link to Political Identity 194Introduction 194The Concept of Citizenship and Its Link to Political Identity Which in an eu Context 194The Limits of eu Citizenship 197The Problems of Differing Levels of Protection from Expulsion for Different Categories of eu Citizens 202Conclusion 207Directive 2004/38 and the Distinction between Economically Active and Non-economically Active eu Citizens 208Introduction 208The Introduction of eu Citizenship Provisions following the Treaty of Maastricht 209The Strengthening of Residence Rights in Directive 2004/38 211The cjeu, the Fundamental Status of eu Citizenship and Residency Rights of eu Citizens 221The Reaffirming and Strengthening of the Residence Rights Attaching to eu Citizens by the Treaty of Lisbon in Light of the Charter of Fundamental Rights 235The Failure of the cjeu to Undertake a Subsidiarity and a Proportionality Review by the cjeu When Determining the Residency Rights of eu Citizens 242Conclusion 244Subsidiarity and Proportionality Review by the cjeu 246Introduction 246The Shift in the Case Law of the cjeu from Discrimination to the Fundamental Status of Citizenship 258Operationalising a Subsidiarity and Proportionality Review 283The cjeu and More Meaningful Engagement with Subsidiarity in Its Judicial Reasoning 286Conclusion 293Conclusion 297AppendicesTable of Treaties, Instruments and Legislation 309Table of Cases 312Bibliography 318Index 338

The Court of Justice of the European Union

Subsidiarity and Proportionality