The Boundaries of Borderlessness?

Background and Analysis to the Judgments of the CJEU in Unified Cases C-643/15 and C-647/15.

Abstract

Through the analysis of CJEU judgement C-643/15 and C-647/15, the paper intends to outline the risks, dangers, deficiencies and questions of constitutional nature that arise in terms of EU decision-making and the resulting EU legal acts. As to its methodology, it will not focus on the analysis of the content or the political implications of the contested decision, however, it mentions relevant contradicting positions. Rather, through the topic of immigration, which is closely connected to social coexistence, in general, and to sovereignty in a constitutional legal sense, the paper aims to initiate legal dialogue and debate on the framework of EU lawmaking and by that, on the boundaries of the legal normativity of EU law.
In analyzing the judgment, as for clarification of the legal and factual background, i.e. the important elements of the constitutional frames of the applicability and validity of the EU legal norm, the paper shall outline the dangers that arise out of the strictly formal distinction between legislative and non-legislative acts, the deficiencies regarding institutional balance and democratic oversight and control. Furthermore, in certain specific cases typical to CJEU jurisprudence, e.g. the examination of necessity, it shall point out the risk of applying overly substantial standards, while also to that of overly formal standards in other cases, such as the determination of the legal acts and relevant procedures. The paper shall also analyze questions about political discretion and responsibility, e.g. by exaggerated trust in administrative systems.
In conclusion, in the interest of an efficient but at the same time – in a constitutional sense – more delineated EU decision-making, the paper will argue for the creation of a Union “authority” safeguarded by more legally sound guarantees, with
due attention to standpoints of EU legitimacy as well as Member State identity.