The Court of Justice of the European Union

Subsidiarity and Proportionality

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In the Court of Justice of the European Union, Subsidiarity and Proportionality Kate Shaw sets out how a subsidiarity and proportionality review applied to competences could be anchored by the Court of Justice when balancing the competing interests in cases concerning the residency rights of EU citizens. The book also considers the extent to which a court which is dedicated to enhancing the European project is really able to be an independent arbiter between the EU and the Member States in this context. Both the legal reasoning of the Court and the controversial nature of residency rights of EU citizens are legally and politically very topical at the moment and of interest to legal academics and law students.
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Biographical Note

Kate Shaw, Ph.D (2015), Brunel University, is a senior lecturer in law at Leeds Beckett University.

Table of contents

1 Introduction
 1 Introduction and Overview
 2 Competence, Conferral and the Principle of Subsidiarity
 3 Anchoring Subsidiarity and the cjeu
 4 Case Selection
 5 Conclusion

2 Subsidiarity and Proportionality and the Balance of Power between the eu and the Member States
 1 Introduction
 2 Subsidiarity as a Legal Principle and Rule
 2.1  The Adoption of Subsidiarity as a Legal and Constitutional Principle by the eu to Limit Unnecessary eu Intervention
 3 Proportionality as a Widely Recognised Concept Used as a Test in Judicial Review
 3.1  Introduction
 3.2  Proportionality as a Widely Recognised Concept Used as a Test in Judicial Review
 3.3  Differing Interpretations of the Operationalization of Proportionality
 3.4  Differing Levels of Intensity of Judicial Review by the cjeu of National Restrictions
 4 Subsidiarity and Proportionality in eu Law-making in Shared Areas of Competence
 4.1  A Conceptual Link between Conferral, Subsidiarity and Proportionality
 4.2  Subsidiarity Alongside Proportionality in eu Law-making in Shared Areas of Competence
 5  eu Subsidiarity and Essentially Contested Concepts
 6 Subsidiarity and the Introduction of the Yellow Card Procedure Following the Treaty of Lisbon
 7 Conclusion

3 Subsidiarity and Proportionality and the Role of the cjeu in Relation to Interpretation of Shared Competence
 1 Introduction
 2 Introducing the cjeu : A Unique Supranational Court
 3 The Pro-union Interpretative Tendency of the cjeu
 4 Subsidiarity and Judicial Review by the cjeu of Political Institutions
 5 Operationalising Subsidiarity and Proportionality Applied to Competences as Tool of Judicial Review
 6 Operationalising Subsidiarity in the Context of the Common Market
 7 Engaging the cjeu More Meaningfully with Subsidiarity in Its Legal Reasoning Outside of Judicial Review
 8 Conclusion

4 The cjeu , Subsidiarity and Determining the Residency Rights of eu Citizens
 1 Introduction
 2 Theoretical Perspectives: The Concept of Citizenship and Its Link to Political Identity
 2.1  Introduction
 2.2  The Concept of Citizenship and Its Link to Political Identity Which in an eu Context
 2.3  The Limits of eu Citizenship
 2.4  The Problems of Differing Levels of Protection from Expulsion for Different Categories of eu Citizens
 2.5  Conclusion
 3 Directive 2004/38 and the Distinction between Economically Active and Non-economically Active eu Citizens
 3.1  Introduction
 3.2  The Introduction of eu Citizenship Provisions following the Treaty of Maastricht
 3.3  The Strengthening of Residence Rights in Directive 2004/38
 3.4  The cjeu , the Fundamental Status of eu Citizenship and Residency Rights of eu Citizens
 3.5  The Reaffirming and Strengthening of the Residence Rights Attaching to eu Citizens by the Treaty of Lisbon in Light of the Charter of Fundamental Rights
 4 The Failure of the cjeu to Undertake a Subsidiarity and a Proportionality Review by the cjeu When Determining the Residency Rights of eu Citizens
 5 Conclusion

5 Subsidiarity and Proportionality Review by the cjeu
 1 Introduction
 2 The Shift in the Case Law of the cjeu from Discrimination to the Fundamental Status of Citizenship
 3 Operationalising a Subsidiarity and Proportionality Review
 4 The cjeu and More Meaningful Engagement with Subsidiarity in Its Judicial Reasoning
 5 Conclusion

6 Conclusion

Appendices


Appendix 1 Table of Treaties, Instruments and Legislation
Appendix 2 Table of Cases
Bibliography
Index

Readership

As the content for this book is primarily doctrinal, legal and critically analytical of EU law and the Court of Justice, the intended audience for the book is for academics, academic libraries, undergraduate and postgraduate EU law students as supplementary reading. The book may also be of relevance to policy makers involved in shared policy areas.

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