Constitutional rights norms in the European Union legal framework: an analysis of European Union citizenship as a constitutional right

The Court of Justice of the European Union (CJEU) continues to be subjected to a level of scrutiny that differs significantly from that received by domestic courts of constitutional relevance and status. This intense scrutiny is rooted in the wide range of cultural and legal understandings of the role of courts within specific legal systems and has resulted in the CJEU being labelled an activist court with a political agenda. This thesis contributes to legal scholarship and in part, political science, adding to the discourse surrounding the CJEU and its reasoning, by suggesting that a norm theoretical approach informs the Court’s jurisprudence and advances its role as the constitutional court of the European Union (EU). The CJEU, as a de facto constitutional court within the EU constitutional order, applies and interprets the norms of the Treaty on European Union and the Treaty on the Functioning of the European Union. These norms demonstrate the characteristics of constitutional rights norms, as discussed by Robert Alexy’s Theory of Constitutional Rights Norms. It is argued that understanding norms in this way enables a clear distinction between rules and principles as norm categories to be drawn. The thesis offers a structural analysis of the EU constitutional framework, highlighting specific norm characteristics as influential in the process of constitutionalisation. Treaty norms governing EU citizenship are analysed in this thesis from the perspective of constitutional rights norms, which enables these norms to be seen as open-textured, requiring rights and interests to be balanced where they conflict with other provisions. The radiating effect of these provisions gives constitutional relevance to secondary legislation, which is of particularly relevance in the context of EU law. The thesis makes the case for looking at EU citizenship, in its norm structure, as a constitutional principle, which requires the CJEU to apply and interpret the provision in specific ways that may then be construed as judicial activism. The thesis informs and enhances the highly relevant and topical discussion of EU citizen rights through a norm structural analysis of the Treaty provisions enshrining EU citizenship within the EU legal framework. The thesis suggests that such an evaluation enables a more objective consideration of EU citizenship as a constitutional right extending beyond subjective rights. Finally, it is argued in this thesis that understanding norm categories and their relevance within the EU constitutional framework enables the development` of a structured understanding of the Court’s jurisprudence based on legal theory.