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Insiders, Outsiders and the Limits of Analogous Interpretation in the ECJ Case Law

Loxa, Alezini LU orcid (2025)
Abstract
Among the many EU law doctrines, none remains as largely uncontroversial as the fundamental normative division between us, the EU citizens at the centre of the legal order and the others, non-EU migrants. Next to the Treaty framework and the different legal bases for free movement of persons and migration, the case law of the Court of Justice of the EU has been central in sustaining the dividing line between the insiders and outsiders of EU law. In this chapter I suggest that while the overall framework regulating the rights of EU and non-EU migrants is different, there are specific areas where the rights attributed to both serve the same purpose and function. In such cases, resolving disputes by emphasizing the differentiation between EU... (More)
Among the many EU law doctrines, none remains as largely uncontroversial as the fundamental normative division between us, the EU citizens at the centre of the legal order and the others, non-EU migrants. Next to the Treaty framework and the different legal bases for free movement of persons and migration, the case law of the Court of Justice of the EU has been central in sustaining the dividing line between the insiders and outsiders of EU law. In this chapter I suggest that while the overall framework regulating the rights of EU and non-EU migrants is different, there are specific areas where the rights attributed to both serve the same purpose and function. In such cases, resolving disputes by emphasizing the differentiation between EU and non-EU migrants amounts to a fictitious construction, rather than a justification based on the interpretation of EU law. To show this the analysis focuses on family reunification and examines how the Court has addressed the relation between the Family Reunification Directive and the Citizens’ rights Directive. Without challenging the vision of EU law that the Court has on the special status of EU citizenship, rather accepting it as the starting point of the analysis, the chapter highlights the inconsistencies in the Court’s case law and argues for a different interpretation on textual, systematic and teleological grounds.

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Please use this url to cite or link to this publication:
author
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
in press
subject
keywords
EU law, EU-rätt
host publication
The Court of Justice of the EU: A Normative Assessment
editor
Loxa, Alezini and Lonardo, Luigi
publisher
Oxford University Press
project
The Legal Reasoning of the Court of Justice of the EU: A Normative Assessment
language
English
LU publication?
yes
id
12d9f154-5aa8-45df-995e-b05b9fcf0743
date added to LUP
2025-09-03 18:22:48
date last changed
2025-09-04 08:13:41
@inbook{12d9f154-5aa8-45df-995e-b05b9fcf0743,
  abstract     = {{Among the many EU law doctrines, none remains as largely uncontroversial as the fundamental normative division between us, the EU citizens at the centre of the legal order and the others, non-EU migrants. Next to the Treaty framework and the different legal bases for free movement of persons and migration, the case law of the Court of Justice of the EU has been central in sustaining the dividing line between the insiders and outsiders of EU law. In this chapter I suggest that while the overall framework regulating the rights of EU and non-EU migrants is different, there are specific areas where the rights attributed to both serve the same purpose and function. In such cases, resolving disputes by emphasizing the differentiation between EU and non-EU migrants amounts to a fictitious construction, rather than a justification based on the interpretation of EU law. To show this the analysis focuses on family reunification and examines how the Court has addressed the relation between the Family Reunification Directive and the Citizens’ rights Directive. Without challenging the vision of EU law that the Court has on the special status of EU citizenship, rather accepting it as the starting point of the analysis, the chapter highlights the inconsistencies in the Court’s case law and argues for a different interpretation on textual, systematic and teleological grounds.<br/><br/>}},
  author       = {{Loxa, Alezini}},
  booktitle    = {{The Court of Justice of the EU: A Normative Assessment}},
  editor       = {{Loxa, Alezini and Lonardo, Luigi}},
  keywords     = {{EU law; EU-rätt}},
  language     = {{eng}},
  publisher    = {{Oxford University Press}},
  title        = {{Insiders, Outsiders and the Limits of Analogous Interpretation in the ECJ Case Law}},
  year         = {{2025}},
}