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Chapter 3 - The Direction of the Court's Family Reunification Case-Law. A Plea for (Timely) Moderation

Published online by Cambridge University Press:  22 September 2018

Henri de Waele
Affiliation:
Professor of International and European Law at Radboud University Nijmegen
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Summary

AIM

This succinct contribution does not aim to engage with what one might call the ‘micro-electronics’ of the family reunification rules. The marvellous exposé of Daniel Thym, also contained in this volume, does a more than adequate job in that respect. Moreover, the present author wholeheartedly agrees with the gist – or perhaps one should say ‘essence’ or ‘Kernbereich’ – of his chapter. In a way, this short chapter serves to further buttress his conclusions. On the other hand, it posits an argument that travels along a distinctly different path. The focus lies on the underlying dynamics of the Court's family reunification caselaw, and consequently, the present chapter deals more with process than with substance. Said dynamics can be analysed (section 2) and critiqued (section 3). In equally traditional fashion, though often regarded symptomatic of the typical complacency of legal scholars, suggestions for improvement may be advanced, which here take the form of a plea for moderation (section 4).

ANALYSIS

Since the early 1960s, both the Community legislature and the Court have been almost relentlessly pushing the family reunification agenda. While at the time, the Parliament remained largely side-lined, the first batch of secondary instruments offers ample testimony of the Commission's and (to a lesser extent) the Council's great zeal. In supporting and occasionally leading the charge, however, the Court seems to have gotten caught up in its own systemic algorithm. In part, that entanglement appears to have spilled back into the legislative apparatus, particularly from the moment the Parliament became seriously involved. Thereby, the algorithm managed to acquire an apodictic credibility, without the original programming that fostered its development coming across as sufficiently sound.

Obviously, the preceding sentences beg for clarification. Let us first recall that at the inception of the Communities, family reunification rights were no component of the European integration franchise. Over time, beyond the economically active, the desire to include other persons entered into the main stream, leading to an expansion of the reach of EU law without proper premeditation.

Type
Chapter
Information
Residence, Employment and Social Rights of Mobile Persons
On How EU Law Defines Where They Belong
, pp. 39 - 46
Publisher: Intersentia
Print publication year: 2016

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