Showing papers in "European Law Journal in 2014"
TL;DR: In this article, the authors analyse the European Parliament's position in the reform of the European economic governance, in particular after the adoption of the "six-pack", the "two-pack" and the "fiscal compact".
Abstract: This article aims to analyse the European Parliament's (EP) position in the reform of the European economic governance, in particular after the adoption of the "six-pack", the "two-pack" and the "fiscal compact". References are made to the involvement of the EP in the decision-making process that led to the adoption of the new measures as well as to the substantive role assigned to this institution in the new regulatory framework. The article argues that the new provisions, which undermine the budgetary authority of national parliaments while, at the same time, designing a limited role for the EP -though strengthened compared to the previous version of the Stability and Growth Pact- can jeopardise the effectiveness of the landmark principle of "no taxation without parliamentary representation" in the EU.
94 citations
TL;DR: In this paper, the authors argue that an ongoing instrumentalisation of law and legal research decreases the attention for methodology, for theory building, and for keeping enough professional distance to one's object of research.
Abstract: Both in the United States and in Europe, there is a debate on methodology in legal research. Doctrinalists and multidisciplinarians appear to be in different camps fighting over the "true nature" of legal scholarship. We wonder where this renewed attention for methodology is coming from and what is behind it. Should European legal scholars follow certain colleagues in the United States who believe that doctrinal research is dead and should we all engage in law and... research now? If not, does this imply that there is nothing wrong with mainstream European doctrinal legal scholarship? We believe the latter is not the case. Our hypothesis is that an ongoing instrumentalisation of law and legal research decreases the attention for methodology, for theory building, and for keeping enough professional distance to one's object of research. This threatens to result in a creeping process of herd behaviour, in copy pasting the methodology of judicial lawmaking to legal scholarship and in a lack of transparency and methodological justification in scholarly legal publications. What is desperately needed is more reflection on methodology and theory building in European legal scholarship.
54 citations
TL;DR: In this paper, the authors conducted a historical institutional analysis of policy change in the Council of Ministers of the European Union and concluded that the current revision deadlock is more stable than the situation before 1992 because now the pro-transparency coalition and transparency-sceptic Council majority have entrenched their positions.
Abstract: The development of access to documents and open meetings provisions by the Council of Ministers of the European Union shows an interesting pattern: before 1992 no formal transparency provisions existed, between 1992 and 2006 formal transparency provisions dramatically increased, and since 2006 this increase has come to a halt. This paper aims to enhance our understanding of these shifts by conducting a historical institutional analysis of policy change. As explanatory factors, we consider the preferences and power resources of Member States, as well as external catalysts and social structures. We conclude that the current revision deadlock is more stable than the situation before 1992 because now the pro-transparency coalition and transparency-sceptic Council majority have entrenched their positions. Nevertheless, and in spite of Council entrenchment, we expect that Council transparency will continue to develop in the longer term, under the pressure of increasingly influential outside actors, particularly the European Parliament.
40 citations
TL;DR: In this paper, the authors argue that there are no empirically observable duties of EU citizenship, and such duties would lack any legal-theoretical foundation, if the contrary were true.
Abstract: Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims. (1) There are no empirically observable duties of EU citizenship; (2) such duties would lack any legal-theoretical foundation, if the contrary were true; (3) legal-theoretical foundations of the duties of citizenship are lacking also at the Member State level; (4) EU law plays an important role in undermining the ability of the Member States where residual duties remain to enforce them; (5) this development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de-dutification of citizenship around the democratic world. If these conclusions are correct, it is time to stop categorising EU citizenship duties among the desiderata of EU law.
37 citations
TL;DR: In this paper, the authors apply various tools developed in network analysis to identify which judgments are the most important as legal precedents, and reveal that certain well-known judgments, like van Gend en Loos, have limited importance as precedents.
Abstract: It is generally agreed that some judgments by the Court of Justice are more important than others, but the ability of traditional legal methods to identify such judgments is inherently limited. In this article, we apply various tools developed in network analysis to identify which judgments are the most important as legal precedents. The study reveals that certain well-known judgments, like van Gend en Loos, have limited importance as precedents, while other judgments, like Bosman, PreussenElektra and Schumacker, are likely overlooked.
36 citations
TL;DR: In this article, the authors focus on the role that fathers play when it comes to family responsibility, in particular the care of young children, and how EU policy and legislation have contributed to it.
Abstract: This article focuses on the role that fathers play when it comes to family responsibility, in particular the care of young children, and how EU policy and legislation have contributed to it. This is important for several reasons. From a theoretical perspective, access to care for fathers represents the other side of the access to paid employment for mothers debate, and completes the deconstruction of the two‐sphere structure. From a more practical point of view, including fathers in the work/family life reconciliation debate is essential for the achievement of important EU policies, such as employment and gender equality. Although society is ready for a change, the legislator has been slow to address it, thus fathers are still missing from the EU's reconciliation policy and legislation. Against this background, the decision of the Court of Justice in Roca Alvarez has, potentially, laid down the basis for a new model of fatherhood.
34 citations
33 citations
TL;DR: The reverse majority voting in the Council when the latter has to adopt, for example, sanctions in above procedures is examined in this paper, where the authors examine whether this voting method is compatible with the Treaties.
Abstract: The "six-pack", a set of six Union legislative acts that was adopted in November 2011, was one of the main Union responses to the current sovereign debt crisis. Aware of the weak performance of the Stability and Growth Pact and of the underlying design faults of the Treaty provisions on the coordination of Member States' economic policies, in particular the multilateral surveillance procedure (Art 121 TFEU) and the excessive deficit procedure (Article 126 TFEU), the legislators were determined to strengthen the means of surveillance in this policy field. One step considered necessary to achieve this end was the introduction of reverse majority voting in the Council when the latter has to adopt, for example, sanctions in above procedures. This article will examine whether this voting method is compatible with the Treaties.
23 citations
TL;DR: The case law of the CJEU on the economic free movement of people has departed from the traditional requirement that a nexus must be established between individual free movement and cross-border economic activity, which has led to an extension of its scope as discussed by the authors.
Abstract: The case law of the CJEU on the economic free movement of people has departed from the traditional requirement that a nexus must be established between individual free movement and cross‐border economic activity, which has led to an extension of its scope. It is submitted that concerns with the protection of fundamental rights of European citizens are driving this process, and that the CJEU has sought to protect these fundamental rights through the market freedoms in two ways: by arguing that market freedoms are fundamental right themselves, and/or that European Citizenship has changed their normative underpinnings and status. This Article criticises both lines of argument, and defends a third: that the protection of these fundamental rights must be achieved at European level, if at all, through a conception of European Citizenship able to stand on its own.
23 citations
TL;DR: In this paper, the authors examine how the Common Commercial Policy in the post-Lisbon era impacts citizens' rights both within the EU and in the partner countries, and show that whereas constitutional rights and competitiveness have the potential to reinforce each other with positive synergy effects, they may also result in tensions and policy incoherencies.
Abstract: This article examines how the Common Commercial Policy in the post-Lisbon era impacts citizens' rights both within the EU and in the partner countries. The EU's aspiration to pursue a normative agenda through trade has further been reinforced by the Lisbon Treaty, both with regard to the objectives of external action and the reformed trade policy-making processes. Concurrently, however, the EU has refocused its trade strategy on growth and competitiveness, and strongly advocated the conclusion of �new generation� free trade agreements. These agreements combine an ambitious �WTO-plus� agenda with normative issues such as provisions on human rights, a social dimension and sustainable development. The result of this dual approach is a mixed �constitutional balance�: whereas constitutional rights and competitiveness have the potential to reinforce each other with positive synergy effects, they may also result in tensions and policy incoherencies.
19 citations
TL;DR: In this article, the authors examined the different possibilities of interconnection between the traditional doctrine of EU fundamental rights and the jurisprudential construction of the citizenship of the Union.
Abstract: The reinforcement of the protection of fundamental rights at the European level and the emergence of the status of Union citizenship are two closely connected phenomena. European citizenship has been and continues to be one of the central arguments in favour of the extension of the scope of EU fundamental rights. This argument arises out of a sentiment that vindicates equality at the core of the citizenship of the Union as a fundamental status. Against this background, this paper examines the different possibilities of interconnection between the traditional doctrine of EU fundamental rights and the jurisprudential construction of the citizenship of the Union. Particularly, it will be discussed whether fundamental rights should be placed at the core of the formula that protects the ‘genuine enjoyment of the substance’ of the rights conferred by EU citizenship, inaugurated by Ruiz Zambrano, already latent in Rottmann and substantially refined in an ever‐growing case‐law (McCarthy, Dereci, O. and S., Ymaraga and Alokpa). It will be argued that this formula carries the very valuable potential to reinforce citizenship of the Union as an independent source of rights able to overcome problems such as reverse discrimination. For these purposes, this formula could be considered to encompass not only the absolute deprivation of the ‘genuine enjoyment of the substance of citizenship rights’, but also the existence of serious obstacles thereto.
TL;DR: The free trade agreement currently negotiated between the EU and India is due to be the first of a new generation of free trade agreements between the US and an emerging economy as discussed by the authors, which addresses a number of critical issues in negotiations and the EU's response to them.
Abstract: The free trade agreement currently negotiated between the EU and India is due to be the first of a new generation of free trade agreements between the EU and an emerging economy. This article addresses a number of critical issues in the negotiations and the EU's response to them. These issues include European labour standards and General Agreement on Trade in Services Mode 4 liberalisation; Indian generic medicine production and EU interests in patent protection; EU agricultural subsidies and their impact on the Indian dairy sector; the human rights and democracy dimension of the EU's foreign policy; and transparency issues of the negotiation process.
TL;DR: In this paper, the authors consider the impact of economic, social and political crisis on the labour law regimes of two of the Member States of the EU most affected; Greece and Ireland.
Abstract: This article considers the impact of the economic, social and political crisis on the labour law regimes of two of the Member States of the EU most affected; Greece and Ireland. Both countries have been the recipients of "bail-out" deals, negotiated and monitored by what has become known as the "Troika" of the European Commission, the European Central Bank and the International Monetary Fund. The article considers the extent to which both countries have been required to make amendments to their labour law regimes as a condition of their bail-outs. It argues that the changes demanded reflect the basic norm now governing the EU legal order, namely that of "competition"; the logic of market integration based on the primacy of economic competition. The article sets the reforms in Greece and Ireland within the broader context of the "social deficit" problem of the EU construction.
TL;DR: In this paper, the authors investigated the possibility of regional entities within EU Member States to become EU member States in their own right following their secession from their mother state. But they pointed out that international law does not automatically allow such regions to remain EU member states since it refers this issue back to the constituent instruments of international organisations and a reading of both the EU Treaties and the ECJ's jurisprudence seems to preclude such a "continued membership".
Abstract: This article investigates the possibility of regional entities within EU Member States to become EU Member States in their own right following their secession from their mother state. International law does not automatically allow such regions to remain EU Member States since it refers this issue back to the constituent instruments of international organisations and a reading of both the EU Treaties and the ECJ's jurisprudence seems to preclude such a "continued membership". The article then further explores the legal issues which could arise during the accession process of the newly independent state. After suggesting solutions to bridge the gap between its secession and its own EU membership, it is argued that the key challenge for such a region would be to ensure a smooth transition, without the loss of prerogatives under EU law, from being an EU region to an EU Member State proper.
TL;DR: A focus on three key manifestations of state sovereignty, namely, the erasure of citizenship status, expulsion and the disappearance of individuals owing to extraordinary rendition, sheds light onto the edges of EU citizenship and the undesirable effects of untrammelled state power on the lives of individuals.
Abstract: Although EU citizenship has matured as an institution, a combination of hope and caution ought to accompany the tale of its evolution. Contradictory processes of inclusion and greater equalisation coexist with exclusionary logics. These would have to be taken into account, and be addressed, by assessments of its present state and its future evolution. A focus on three key manifestations of state sovereignty, namely, the erasure of citizenship status, expulsion and the disappearance of individuals owing to extraordinary rendition, sheds light onto the edges of EU citizenship and the undesirable effects of untrammelled state power on the lives of individuals. Probing into the moments when EU citizens are treated as aliens or foreigners, and the troublesome ambiguities, tensions and limitations surrounding them, reveals the gaps in the protection of EU citizens and the constraints that stand in the way of change in the institutional scheme of things.
TL;DR: In this paper, the authors provide a general introduction to EU policy on preferential trade agreements and provide a background for the more detailed discussion of the constitutional issues involved in EU PTAs.
Abstract: The aim of this article is to provide a general introduction to EU policy on preferential trade agreements (PTAs) and thus to serve as a background for the more detailed discussion of the constitutional issues involved in EU PTAs. It starts with a description of how EU policy evolved during the 2000s, arguing that EU policy was predominantly driven by external or systemic factors in the international trading system and the EU's commercial response to these, rather than a policy shift driven by predominantly internal factors. This description is followed by a summary of the various motivations behind EU policy. The paper then discusses the content of the EU �model� for PTAs. The term model needs to be used with some caution as the EU approach to PTAs has been fairly flexible and the content varies depending on the EU interests and those of its negotiating partner in any specific negotiation.
TL;DR: The authors argue that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced "constitutional dialogue" with the EU's political institutions, and that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions.
Abstract: This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case-law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.
TL;DR: The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right for health care when Member States are so different as discussed by the authors.
Abstract: Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.
TL;DR: In this article, the authors provide many vivid examples of the variable institutional and legal components of transatlantic relations not usually accounted for in scholarship on trans-atlantic relations, including the so-called Brussels effect, assessing the perceived spillover effect of EU regulatory standards onto US rules.
Abstract: Law plays a significant role in contemporary transatlantic relations outside of the bilateral context which, from the perspective of EU external relations law, might seem neither conventional nor apparent. Non-bilateral transatlantic relations increasingly deploy law as a communication tool between the two legal orders. For example, in 2011, the US intervened informally and anonymously in the formulation of EU legislation, while the US House of Representatives passed legislation to prohibit the impact of EU law upon the US legal order. Another example is constituted by EU amicus curiae submissions before the US Supreme Court in death penalty cases. The so-called Brussels effect is also the subject of recent scholarship, assessing the perceived spillover effect of EU regulatory standards onto US rules. The paper provides many vivid examples of the variable institutional and legal components of transatlantic relations not usually accounted for in scholarship on transatlantic relations.
TL;DR: The German Federal Constitutional Court (FCC) has recently ruled on several applications for temporary injunctions against the transposition of these instruments, and the problem of democratic self-determination under the constraints of monetary integration has been a main concern in the ruling.
Abstract: In its pending decision on the constitutionality of the European Stability Mechanism and Fiscal Compact, the German Federal Constitutional Court (FCC) has recently ruled on several applications for temporary injunctions against the transposition of these instruments. The problem of democratic self-determination under the constraints of monetary integration has been a main concern in the ruling. Yet, the democracy-safeguards the FCC has prescribed are parochial in not considering their impact on other EU Member States, and the Court's view of autonomy is skewed towards the issue of spending. Both concepts are at odds with the current level of transnational interdependence, which the FCC as relay to "integration by stealth" has facilitated during two decades of EU-jurisprudence. Constitutional jurisdiction should acknowledge its role in this state of affairs and fortify its effort in building judicial networks of deliberative exchange to overcome outworn parochialisms.
TL;DR: In this paper, the authors use case-to-case citation networks to explore the force of precedent in EU law and conclude that the cohesive pull of precedence in EU citizenship case-law is too weak to generate a coherent judicial doctrine.
Abstract: In this article, we use case-to-case citation networks to explore the force of precedent in EU law. We introduce a novel methodology to analyse the extent to which references to past decisions act as reasons for decisions in subsequent cases and illustrate the approach on the European citizenship case-law citation network. We conclude that the cohesive pull of precedent in EU citizenship case-law is too weak to generate a coherent judicial doctrine, thereby confirming qualitative research on the subject. However, the incursions into competences of the Member States in areas, found only tangential to EU citizenship, form a more consistent underlying story.
TL;DR: The role of law in the governance of the Eurozone confronts divergent economic and political perspectives which are reminiscent of the gold standard era as discussed by the authors, and the European Central Bank ECB has been forced to become lender of last resort to sovereigns to maintain the single currency.
Abstract: The role of law in the governance of the Eurozone confronts divergent economic and political perspectives which are reminiscent of the gold standard era. The Maastricht model sought to use to law to create a sound currency. In practice, fixed exchange rates caused large trade imbalances and risky cross-border investments resulting in a Eurozone-wide crisis of first private, and then later, public insolvency. In the face of continued political unwillingness to either pool fiscal resources or impose massive austerity and structural reform, the European Central Bank ECB has been forced to become lender of last resort to sovereigns to maintain the single currency. Ordo-liberal critics argue that the ECB has created a transfer union in breach of the Maastricht agreement. Keynesians, by contrast, argue that, just as under the gold standard, using ‘constitutionalised’ austerity to rebalance trade is neither just nor credible. The Eurozone's reliance on law and markets above developed political institutions has failed, but no democratically legitimate process has replaced it.
TL;DR: In this article, the authors explore the linkages and potential conflicts between human rights and trade in the context of regional trade agreements, with a focus on the interim Economic Partnership Agreement between the European Union and the Southern African Development Community Group.
Abstract: As free trade agreements proliferate, the relationship between trade and human rights continues to attract attention across academic disciplines. The linkages between human rights and liberal trade rules have been the subject of debate for some time. Since most countries tend to afford constitutional protection to both human rights and freedom of trade, there appears to be an inescapable connection between the two regimes. In theory, at least, economic growth should improve human rights standards and conditionality can be one way through which human rights compliance is achieved. However, in practice, States often pursue economic objectives that conflict with their human rights obligations. This article explores the linkages and potential conflicts between human rights and trade in the context of regional trade agreements, with a focus on the interim Economic Partnership Agreement between the European Union and the Southern African Development Community Group.
TL;DR: The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is the first human rights treaty to be concluded as a mixed agreement between the United Nations and the European Union as discussed by the authors.
Abstract: A recent development in European law, less heralded, but no less path‐breaking than the Treaty of Lisbon, was the ratification by the EU of its first human rights treaty—the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Concluded as a mixed agreement, the CRPD's pioneering monitoring mechanisms demand a high level of cooperation from both the Union and its Member States. It, thus, provides an opportunity for the Union to further develop a distinctly European notion of federalism by the use of new, innovative governance mechanisms. This article looks at the Union as a federalist project through the prism of the mixed agreement, and specifically the ways that federalism may be balanced within it, using the CRPD as an example. Although the Union has an existing Code of Conduct under the Convention, it lacks true engagement with these issues, and this article proposes changes to that end.
TL;DR: In this paper, the compatibility of trade agreements with constitutional rights in Colombia is explored by looking at recent case-law of Colombian courts, which is a particularly interesting case because of the coincidence of a new constitutional context with, on the one hand, an important rights catalogue and new instruments to protect fundamental rights, and on the other hand, liberal economic principles.
Abstract: Colombia has recently negotiated trade agreements with the EU, the US and some other countries. This article explores the compatibility of these agreements with constitutional rights in Colombia, by looking at recent case-law of Colombian courts. This Andean country is, in our view, a particularly interesting case because of the coincidence of a new constitutional context (with, on the one hand, an important rights catalogue and new instruments to protect fundamental rights, and on the other hand, liberal economic principles), a Constitutional Court with activist features and a particular socio-political situation.
TL;DR: In this article, the Fedon case-law of the European Court of Justice (Court of Justice), which involved a claim for compensation by Fedon (an Italian producer of eyeglass cases) from the EU for the imposition of World Trade Organization (WTO)-authorised retaliatory trade barriers by the USA following the failure by the EU to comply with an adverse ruling by the WTO regarding its import regime for bananas.
Abstract: This paper discusses the Fedon case-law of the European Court of Justice (Court of Justice), which involved a claim for compensation by Fedon (an Italian producer of eyeglass cases) from the EU for the imposition of World Trade Organization (WTO)-authorised retaliatory trade barriers by the USA following the failure by the EU to comply with an adverse ruling by the WTO regarding its import regime for bananas. As a result of the EU non-compliance, European banana distributors and some bananas producers benefited from WTO-illegal protection, at the expense of a set of EU exporters, including Fedon, that were hit by US countermeasures. Fedon contested the non-compliance by the EU before the Court of Justice and sought compensation. This paper assesses the ruling of the Court of Justice against Fedon and argues that the Court got it wrong, both in terms of legal principle and as a matter of legal technicalities.
TL;DR: The authors examines critically the belief that national democracies are inherently deficient on democratic grounds since they affect people across their own borders without offering them a voice in the domestic political process, and argues that making sense of this belief requires transforming it into a principle of cosmopolitan citizenship that draws on the idea of virtual representation.
Abstract: This review article examines critically the belief that national democracies are inherently deficient on democratic grounds since they affect people across their own borders without offering them a voice in the domestic political process. Supranational institutions are supposed to address this problem. The article explains, first, that this belief can be given two different readings: one is liberal, the other democratic. Second, it argues that making sense of this belief requires transforming it into a principle of cosmopolitan citizenship that draws on the idea of virtual representation. The current European Union would look differently if it were to abide by this principle.
TL;DR: In this paper, the authors analyse the multi-layered regulation of foreign investment against the backdrop of the evolving EU-India economic relations and make the future EU�India investment treaty one of the most promising investment agreements.
Abstract: India and several EU member countries share a rich history of investment collaborations The collaboration has been cemented with several formal agreements with individual EU members, and the recent negotiations with the trade bloc since June 2007 on a broad-based Bilateral Trade and Investment Agreement (BTIA) can be considered as a culmination of this process while ongoing WTO negotiations on Mode 3 commitments remain essential in terms of market opening The present article analyzes the multi-layered regulation of foreign investment against the backdrop of the evolving EU-India economic relations The 2009 Treaty of Lisbon gave a new competence to the EU which will impact ongoing negotiations with India whose global standing has been significantly changing in recent years The economic vibrancy, coupled with large market size, has earned India greater relevance in several international forums, thereby making the future EU�India investment treaty one of the most promising investment agreements
TL;DR: In this article, the authors argue that the authority of the EU is inexplicable in terms of collective civic self-determination, and they explain the condition under which it is plausible to impute the current shape of the Union to the collective selfdetermination of European citizens.
Abstract: The article challenges the established view according to which the authority of the EU is inexplicable in terms of collective civic self-determination. Contrary to this widely held belief, it explains the condition under which it is plausible to impute the current shape of the Union to the collective self-determination of European citizens. This condition is met if citizens approach the Union with a cosmopolitan attitude. The article then goes on to explain that while the Union may not appear optimal under this condition, it looks quite disastrous when approached from the perspective of political self-determination. The argument makes an appeal to European citizens. They have to come to grips with their own self-understanding. Should European citizens come to realise that they are, after all, political beings because they care about sustaining a form of life at specific place of the world, they will have to re-appropriate Europe for themselves.
TL;DR: The European Commission has argued that any newly independent state formed from the territory of an existing Member State would require an Accession Treaty as discussed by the authors, and argued that the general principles of the EU Treaties ought to govern how Scotland is treated.
Abstract: The position of an independent Scotland within the European Union (EU) has recently been a subject of considerable debate. The European Commission has argued that any newly independent state formed from the territory of an existing Member State would require an Accession Treaty. This article critiques that official position and distinguishes between a set of claims that could be made on behalf of an independent Scottish state, and a set of claims that could be made on behalf of the citizens of an independent Scottish state vis-a-vis the EU. It argues that the general principles of the EU Treaties ought to govern how Scotland is treated, and that a new Accession Treaty is not necessary. Furthermore, notwithstanding the jurisprudence of the European Court of Justice (ECJ) in the area of EU citizenship, we conclude that EU citizenship itself is not sufficient to guarantee or generate membership of the EU.